OTTAWA - The Canada Border Services Agency was warned that publishing a "most wanted" list to track down and deport alleged foreign war criminals could instead trigger an immigration rule barring their removal, government documents show.
The list, posted on the border agency's website last July, asks the public to phone in tips on the whereabouts of denied migrants — mostly failed refugee claimants — the federal government accuses of committing war crimes or crimes against humanity before coming to Canada.
The list currently features mug shots and identifying details for 21 cases. Four others on the list have been deported, two remain in detention and a handful have since left the country on their own.
Immigration Minister Jason Kenney and Public Safety Minister Vic Toews have both said those involved in such crimes "will find no haven on our shores."
But a border agency briefing note prepared prior to the list's unveiling cautioned that putting a deportee on a "wanted war criminals" list could stir up attention back in their home country.
The possible notoriety could effectively paint a target on their back and put them at risk of torture or human-rights abuses, adds the note, obtained under the Access to Information Act.
Arshad Muhammad was arrested within two days of being put on the list.
But whether he will be sent back to his home country of Pakistan is now in doubt after immigration officials found him at risk of torture there.
The Immigration and Refugee Protection Act, the law governing deportations, can prevent a deportee from being kicked out if they face a significant chance of harm in the destination country.
Citizenship and Immigration Canada routinely conducts screenings for possible abuse before a removal, a process known as a pre-removal risk assessment.
The briefing note, about an early proposal for the wanted list, warns that the "release of this information would highlight a person's case to the public, potentially leading to the person being at risk when removed, potentially leading to a positive Pre-removal Risk Assessment."
A positive assessment means the deportation cannot proceed save for exceptional circumstances, such as if a deportee is deemed a danger to Canada.
A delegate of the immigration minister weighs the factors in deciding whether to allow a deportation, though the delegate's ruling could be overturned upon appeal to the Federal Court.
After Muhammad's name was posted by the border agency, media in Pakistan twigged to the publicity — including Kenney linking him with a terrorist group — and his family was threatened, said Lorne Waldman, a prominent immigration lawyer helping represent the man.
A minister's delegate has yet to decide whether Muhammad, who Waldman says was not deemed to be a threat by border agency officials, will be deported as planned or released. He may be reassessed in the future.
"What happened in Mr. Arshad's case is precisely what the CBSA predicted" in the internal memo, Waldman said in an interview.
Briefing notes also reveal border agency officials initially recommended the government take a go-slow approach after Toews' office "encouraged" the publishing of a wanted list.
Public servants suggested the list initially feature just five Toronto-area cases and be announced by news release only, documents show.
The pilot would allow "costs and benefits" — including potential privacy and Charter challenges — to be evaluated before a future expansion.
Instead, Toews and Kenney took the wraps off a Canada-wide wanted list featuring 30 cases at a Toronto news conference. A second list was later created for 32 people with deportation warrants for committing serious crimes on Canada soil.
Waldman said the internal recommendations confirm fears the Conservative government saw the wanted list mainly as a vehicle to burnish its tough-on-crime reputation.
"They put more priority on the message that they were seeking to send out as opposed to the actual implementation of the policy that they were trying to achieve," said Waldman, who called the wanted list "counterproductive."
All precautions were taken in the creation of both lists, a border agency spokesman said.
"The cases selected for inclusion on the website are researched for potential impacts and to ensure that appropriate due diligence is exercised," Luc Nadon said in an email.
The chance of risk stemming from wanted-list publication is "only one factor, out of many" determining whether a deportation goes through, Nadon said.