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Administrative discretionary decision-making

A report on some exploratory research into administrative discretionary decision-making 

Submitted to: 
The Honorable Robert Stanbury, 
Minister in charge of Citizenship 
November 30, 1970 

Introduction 

The study contained here, undertaken by the British Columbia Civil Liberties Association (BCCLA), is concerned with the possible effects upon civil liberties which ensue from the exercise of discretionary powers by public officials. 

In contrast with the criticisms commonly levelled at bureaucracies for their failure to take the individual into account, we are concerned here with potential and actual ways in which individualization proves to be inequitable and dysfunctional for the citizen. Our special purpose and focus is related to the ways in which the creation and the exercise of discretionary powers may, or actually do, raise civil liberties issues. Obviously, other issues, of comparable importance, may merit attention. The BCCLA has selected for attention what seems most appropriate to its competence and interest. 

Two government activities have been selected for examination: the administration of the Immigration Act by the Government of Canada, and the administration of social assistance by the Government of British Columbia. The present stage of our studies enables us to identify certain issues. We are aware also that more information and a broader study will assist in clarifying and expanding on our present observations. 

Section One: BCCLA Research Project Report 
August 24, 1970 
A.W. Amor 

Immigration Act 

Work completed since last report. 

Consolidated decisions of Immigration Appeal Board obtained from Ottawa and searched for cases involving decision-making on the facts at the in the areas of decision-making set out in last report. If time and finances permit it is felt that some other aspects of Appeal Board decisions might profitably be studied and commented upon by a legally qualified research assistant. 

Continued interviews with lawyers and others having official or professional association with the areas under research—one of the two main immigration lawyers in Vancouver was interviewed for the best part of a morning. As far as I can see at the moment, there only remain two or three interviews of officials or professionals to be undertaken in Vancouver. We could continue talking to both satisfied and aggrieved clients of the Immigration Department until the close of the project. 

Two trips to border with applicants for landing. Numerous trips to Pacific Regional Head Quarters (Immigration) to arrange to attend inquiries, set bonds of conditional release and obtain transcripts. Numerous trips to Immigration detention units at city jail and Oakalla to attend inquiries and visit prisoners. Visits and interviews with persons already dealing with Immigration but not under detention. To date, three immigration inquiries have been undertaken, all resulting in deportation orders—two of the three persons involved have been released from detention with permission to work pending appeal. The appeals will be heard in Ottawa—the appellant may make written submission, or he or she may attend in person and make oral submissions, or may be represented by someone else. If he or she is indigent or cannot afford the expense of a trip to Ottawa the government, through the Appeal Board, will pay for travelling and subsistence. It is understood that the respondent (the Immigration Deptartment, in the name of the Crown) is always represented at the hearing and always makes oral submissions. The success rate of appeals taken with the appellant making written submissions is apparently extremely low. 

Numerous telephone conversations at home, when inmates of immigration detention units phone me to discuss their case. Other phone calls to obtain material for further contacts. 

Obtaining and studying transcripts of inquiry proceedings in the three aforementioned cases, and other cases where transcripts have been made available. 

Attendance at Vancouver courthouse listening to habeas corpus and other prerogative writ applications involving immigration cases. 

Attempts to obtain the written instructions detailing criteria for the types of decisions under research have been unsuccessful. Attempts to arrange an interview with the Regional Director through his secretary were also unsuccessful. A letter has recently been sent to the Regional Director (Immigration) requesting assistance and a look through the operating manuals. A further attempt at arranging an interview will be made after a reply to our letter is received. 

Library Research 

Some comments on apparent patterns developing, and areas of apparent inadequacy, inconsistency and outright violations of the statute observed to date.

  1. Apparent inconsistency of criteria applied in practice at different border crossings. At least seven cases already known and partially documented where an applicant for landing has been refused (or allowed to withdraw application) at the main border crossing at Douglas, B.C.—shortly after the applicant has applied at some other border crossing in B.C. giving exactly the same qualifications, job offers, assets, etc., and with the same style of dress and has been accepted for landed immigrant status pending medical clearance (accepting that pending medical is the normal outcome of a successful application at border points, where there are little or no facilities for a medical examination). Douglas, B.C. has also provided examples of apparent trick questions being applied during interviews of applicants, whereas no incidence of trick questions has been observed at nearby interior of B.C. border crossings. Standard criteria for amount of funds required, transportation, length of visit, and documentation for visitors seems to be much stiffer at Douglas than at other border points in B.C.
  2. Apparently irrelevant or improper questions asked of applicants for landing—although we could not conclusively determine the relevance or propriety of certain questions until we have seen the operating manuals—research interviews with certain clients of the Immigration Department disclose a number of questions that seem out of place at this time. Among these questions were “Have you been in contact with any member of the Unitarian Church in Vancouver?” “Were there any riots on your campus when you were in college?’: and “Are you a prostitute?” Although section 5(e) of the Immigration Act prohibits the admission of ’prostitutes, homosexuals… or persons coming to Canada for these or any other immoral purposes’ and therefore the immigration officer might be justified in making discreet inquiries as to the applicant’s income, movements, etc., the direct question “Are you a prostitute?” can only be calculated to insult, which it most certainly did in the case under research, which involved a married woman being interviewed by Immigration in the company of her husband. It is hideously unrealistic for an officer to expect anyone to admit to such a vocation, even if an applicant did make a living by prostitution.
  3. Apparent patterns of obstruction and engineered delays in certain cases. Applicants for landing at certain border points have been sent back to complete parts of applications or to wait for a legal opinion from Vancouver, usually involving draft evasion, or so that the officer can check up on job offers. The applicants in these cases were not allowed to remain at the border post, but had to return to the U.S., although in most cases the procedure involved a few hours at most. Also there are partially documented cases where the applicant at the border has been kept waiting until the shift changes, and then has been sent to Vancouver for examination, where he or she is promptly deprived of the assessment points that are attached to a job offer when the application is made at the border. From indirect reports (rather than first hand interviews with the clients) it also appears that there is a good possibility of other areas of harassment and ’discussion tactics’ waiting to be examined.
  4. Inconsistencies in amount and condition of release bonds pending commencement or completion of an inquiry, and pending appeal. There is no formal bail application hearing, and no appeal from the Immigration officer’s decision until the inquiry is completed. Some inquiries grind on for six months or more. A person convicted of illegal entry can be released on his or her own signature in the amount of $9,100, with permission given to accept employment, whereas others without any convictions have had bonds set at $8,500 and upwards, without permission to work. The officer setting the bonds in some cases under research, maintains that he or she is a free agent without instructions from his or her superiors concerning the amount or conditions of the particular bond, but refuses to give reasons for his or her decision or to adjust the amount or conditions when faced with new circumstances.
  5. Conduct of immigration inquires: Some quite frightening practices have been observed at these proceedings, and it has become increasingly apparent to this researcher that, however well-meaning the individual officers may be to see justice done in their particular inquiry, the instructions they are under and the general atmosphere of the proceedings (e.g., in camera, no particulars of the allegations to be met, compulsion to testify against oneself, inadequate recording facilities for transcript etc.), could hardly be less conducive to the securing of a fair trial by accepted standards. The more notable points experienced at first hand are:
    • The decision on an inquiry by an immigration officer being not one of the decisions that the Act permits him or her to make. Section 28 of the Act says that at the conclusion of an inquiry the immigration officer must either admit the person or let him or her come into Canada or remain there, or he or she must order that person deported. Upon being asked for a decision on an inquiry previously held, the immigration officer said that he had decided to ’merge’ that inquiry with one presently underway. After being pressed on this point the immigration officer refused to render a decision in accordance with the Act. The subject of the inquiry is now faced with the prospect that, if he wins an appeal on the later inquiry, which he probably will, the Department will probably say that the immigration officer erred in his decision to ’merge’ outside the terms of the Act, and continue with the earlier inquiry as if nothing had happened
    • Difficulties placed in way of the person representing subject of inquiry. The Immigration Act provides the right of counsel at inquiries, and the Department has accepted that this does not necessarily mean legal counsel, but can be a priest, friend, or anyone in whom the subject has confidence, and whom he or she will name as his or her counsel.

Welfare from the depths: Recipients’ perceptions of assistance

“It turned my husband into a complete coward. He wouldn’t even go and fact them…and this did eventually ruin our marriage because it left him with no self-respect whatsoever”
– a Vancouver welfare recipient.

The sharp rise in unemployment across Canada in the past several months and the concurrent rises in welfare costs have focused public interest and concern on the Canadian public assistance system. In British Columbia, an unemployment rate approaching 10%, and the recent appointment of a welfare minister whose public statements frequently reflect scorn and disdain for welfare recipients, have exacerbated an already troubled situation.

As in the other provinces, welfare programs in B.C. operates under the terms of the Canada Assistance Plan and half the costs are paid by the federal government, the remainder is shared by the provincial and municipal levels of government. Administration in B.C. is the responsibility of municipalities, though general regulations and policy decisions emanate from the provincial welfare ministry. Though administration and cost sharing vary from province to province, generally welfare programs suffer from the following defects:

  • payment levels are too low. Average payments for food, shelter, clothing and sundries do not allow recipients to maintain a standard, promoting psychological and sometime physiological adequate living hardship.
  • eligibility determination is often capricious. In some jurisdictions, a simple assertion of red quickly brings assistance. In other words, applicants may be subjected to lengthy investigation. Often standards vary within a jurisdiction according to welfare functionaries’ views of deservingness.
  • programs provide a built-in incentive not to work. Until quite recently, recipients in B.C. lost a dollar from the monthly allotment for every dollar earned. Recent modifications to regulations have alleviated this somewhat, as recipients may now earn up to $100.00 per month without penalty, but still there exists little incentive to get off assistance.
  • public assistance is linked to counselling and other services whether the recipient wants these services or not. Recipients are subjected to the ministrations of welfare workers and may become the unwilling object of services such as psychiatric treatment. The recipient’s ability to judge the appropriateness of such services and his or her right to accept or reject them are truncated.
  • reviews and surveillance of recipients’ expenditure of funds goes far beyond what it is necessary to verify continuing eligibility and detect possible fraud. Recipients are required to give welfare functionaries access to bank statements, rent receipts and the like, and are often given aid under the humiliating voucher system, which stigmatizes them as welfare cases, and strictly limits their choice of supplies of goods and services.

Obviously such deficiencies can make life on public assistance an uncomfortable and traumatic experience, one that seems to alienate recipients from the larger conanunity. The research reported here is the result of in-depth interviews with welfare recipients and was undertaken to gain some insight into the problems and life circumstances of this group. Subjects were receiving assistance from the City of Vancouver social service department and had established initial eligibility within the past calendar year. The investigator, through contacts with welfare workers and such welfare recipient groups as the Opportunities program, approached subjects. An attempt was made to interview recipients falling into several categories, including young male adults, women with dependent children, and older unemployed men. As respondents were not selected through random sampling techniques, findings cannot be generalized to all welfare recipients. Furthermore, as welfare programs are municipally administered, situations reported here cannot be assumed to exist in other jurisdictions.

The interview situation was kept open ended and unstructured, with respondents being encouraged to recount what experiences seemed significant from their initial contact with the welfare agency to the present. This strategy seemed appropriate because the project’s purpose was to probe the perceptions and attitudes of welfare recipients. Interviews were tape recorded, and typed transcripts made of all interviews. In all cases respondent’s identities are held in confidence.

Information obtained from these interviews will be discussed in four sections: becoming a recipient, the experiences of the initial contact with the welfare office; clienthood, the nature of ongoing contacts with the welfare office; knowledge of policies, recipients’ perceptions of welfare policies and decision-making processes and recipients’ feelings about being on the public rolls.

Becoming a recipient

As a general rule, subjects had exhausted a personal savings and all other conceivable resources before applying for assistance. Many approached the welfare office psychologically exhausted from the trauma of experiencing personal and financial reversals, and burdened with feelings of guilt and anxiety.

Experiences with the welfare office were perceived by most as an ordeal with an insensitive and unsympathetic bureaucracy. Initial contact was usually with an office receptionist who asked some basic screening questions. One young man reported that the receptionist told him he would never qualify and advised him to leave Vancouver. A woman with dependent children was shuttled by receptionists between three welfare offices. Following initial screening, came a wait of up to six hours in a crowded uncomfortable room. Eventually respondents were seen by an intake worker, whose task is to determine eligibility through the application of a “means test”. Respondents did not feel the worker was interested or concerned about their needs or problems, but rather was concerned only with completing what one woman described as “a form about a mile long which went into every detail of your life”. Another woman remarked, “She [the intake worker] wasn’t very friendly. She certainly didn’t give any encouragement to ask questions”. Added a young man, “She was very unclear to any answers. She didn’t volunteer anything and she kept saying the same thing over and over again, even though I repeated my questions”. Following this interview, applicants were sometimes given aid in kind, such as food vouchers, and instructed to return in several days for the first welfare cheque.

Clienthood

Following the establishment of eligibility, recipients are assigned a caseworker. The caseworker may or may not assume an active role in a recipient’s life, and consequently perceptions of the caseworker vary. Some reported a close relationship and were grateful for the services rendered by their caseworkers, while others perceived their caseworkers as meddling in their personal affairs. A middle aged man remarked: “Some of them workers give you the idea that [assistance payments] are not coming from the government but out of their pocket and begrudge the whole thing”. A young man reported his worker made several unannounced home visits. And a female recipient felt her worker encouraged her marital problems: “For one thing she had encouraged me very desperately to leave my husband. She told me he was a completely, utterly, hopeless bum”.

Many recipients experienced a rapid turnover in caseworkers. One recipient even reported having five caseworkers during one year, and many reported three or more. Such a situation does not lead to the development of a trusting relationship between caseworker and client. Not only do recipients have little time to develop a relationship, but also the recipient may be exposed to widely divergent attitudes about his or her problems and situation as a client from different caseworkers. At one time, they may be assigned a truly concerned worker, then several months later be subjected to a negative attitude. This situation frequently leads to the development of an attitude by recipients such as the one expressed by the following woman: “I call my worker only when it’s a real urgent thing”.

Recipients may be required to report to the welfare office to pick up cheques or may have them mailed to their residence. With each payment comes an intensive scrutiny to establish continuing eligibility and ascertain any other income for the previous month to be used in computing the next allotment. Recipients perceive this as unfair and an intrusion into their private affairs. One woman noted: “Actually I don’t like the form because it forces a person to lie, because I don’t feel that anyone would put down anything that would cut their next cheque because you need every cent you can put your hands on”.

When recipients are given supplemental grants for items like clothing or linen, their competence to responsibly spend such funds is denied by the welfare system. Welfare functionaries may tell recipients how to select drapes and furnishing. One woman priced used furniture only to have the welfare worker order what the recipient described as “a bunch of junk” from a local salvage yard.

Such recurring situations do nothing to foster feelings of responsibility and self worth among welfare recipients. In fact they may promote alienation, hostility, mistrust and fear. A middle-aged recipient summed up the feelings of many: “I don’t bother them unless I absolutely have to.” It seems evident that the official behaviour that exacerbates original feelings of despair and alienation is, in part, a function of the type and range of discretionary powers vested in the officials.

Knowledge of policies

Welfare recipients live in almost complete financial dependence on the welfare office, yet there exists a surprising lack of knowledge by recipients about the policies and procedures of the welfare office. In fact, this situation seems largely due to functionaries who, from the initial contact period, withhold information about decisions that have a basic effect on a recipient’s existence. The criteria employed to compute housing, food and clothing allotments are often not known to recipients. Not one respondent reported being informed about such matters during the intake process, nor did the welfare office make a brochure available to inform new clients of policies and procedures. Recalling the intake interview, one recipient said, “I don’t think the worker went into any great detail. I wasn’t given any pamphlets or literature.”

Such ignorance frequently leads to severe hardships. One woman with a dependent child reported that she lived in a small room for over three months as she was under the impression that $50 was the maximum allowable expenditure for rent. Another woman recalled: “I’ve had times where my children ate nothing but crackers for three days because I didn’t know about food vouchers. I got to know about them just six months ago.” And another woman, unaware of the furniture allotment, noted that her children ate off the floor because they couldn’t afford a table and chairs.

In the absence of accurate information from the welfare office, recipients often become aware of special benefits by word of mouth from other recipient. One man noted: “I talked to other people and found out.” Another reported her caseworker got her a bed after a home visit during which her worker found that she and her young son slept on the sofa. Possibly because of the haphazard and unreliable sources of information, most respondents were unaware of maximum entitlements under special grants or rights of appeal from capricious actions by welfare functionaries. Recipients reported unexpected or unexplainable deductions in their monthly allotment. Efforts to ascertain the causes of such deductions were frustrated and stymied. Following up a $33 reduction, one woman reported the fruitless results: “There’s no explanation. I asked if they could look up my file and they said no.” Another woman found a $9 reduction after she got a linen allowance. Recipients perceive such special allowances to be either the result of a personal intercession by the caseworker, or as something won from a begrudging bureaucracy. Asked how she got a special clothing allowance, a female recipient noted: “Would you believe I bugged them? I just kept calling and calling and I guess I got it to keep a out of their hair.”

Lack of accurate knowledge about welfare policies and procedures, coupled with the general anxiety of offending welfare functionaries because of the recipient’s dependent situation, lead many recipients to avoid requesting what few benefits are available for them. One man summed up what seemed to be the general attitude: “They don’t want you to ask for nothing special.”

Recipients self-perceptions

Recent pronouncements by B.C.’s Welfare Minister, and comments by citizens through such media as the press, reveal an attitude of suspicion and disdain towards welfare recipients. Such public hostility coupled with the insensitive and, from the recipient’s vantage, often highhanded actions by the welfare office, foster a fear and dread of public exposure as a welfare recipient. Commenting on perceived public attitudes, one woman remarked: “They think everything is subsidized for a welfare person and they just get everything they ask for which isn’t true.” Another remarked: “Everyone knows you’re on welfare. They stamp the envelope ’DO NOT FORWARD’ in big letters. Even your medical card, and it’s got a W, which means welfare.”

Methods employed by the welfare office seem to recipients to be designed to cause public embarrassment and humiliation. Regarding food vouchers, a recipient noted: When you do get a voucher you are super sensitive to almost anything, and that just the slightest thing or any hassle at the grocery store it really is bad because you really feel it.”

The perception of hostile public attitudes and concomitant fear of humiliation can do little to foster the self-confidence of recipient feelings of self-worth. Rather, feelings of hopelessness and unreasoning anger are likely to characterize recipients given such recurring situations.

Conclusions

An often voiced objective of welfare programs is to aid recipients in time of need and help them become “responsible citizens”. To attain such a goal, welfare programs certainly must not be administered in such a way that fosters submissiveness and suppliance on the part of recipients and denies recipients the basic right to live a life of their choosing. Yet the results of this study do not paint an encouraging scene, with recipients’ perceiving an insensitive bureaucracy clothed in red tape, one routinely denying recipients’ control over their personal affairs. Clearly there are dedicated welfare workers, yet the very structure of the welfare system seems to obliterate the efforts of such people and reinforce feelings of frustration and hostility among recipients. Some changes are necessary and, at a minimum, should include the following: informaing all recipients at the time of application of procedural rights, special allotments, opportunities for job counselling, simplification of the eligibility investigation and review process, policies designed to foster independence and self-respect among recipients which would entail the elimination of vouchers and the overage system (which basically rewards begging by recipients), redefining the caseworker role away from that of an instrument of agency rules to that of a knowledgeable advocate for the recipient.

As a basic premise, a democratic society must provide all its citizens, especially those who are financially downtrodden and politically weak, effective tools to protect their basic human rights. The welfare recipient is in dire need of means to enhance the dignity and self-respect due all citizens in a democracy.

Overall concluding observations

In the course of the foregoing studies, certain issues touching upon civil liberties have been identified. It may not be certain that citizens do, in fact, suffer an infringement of their civil rights and freedoms, but it appears evident that the possibility for this exists.

  1. With regards to both the Immigration and Social Assistance administrations, the studies identified situations in which officials appeared to have engaged in an illegitimate exercise of power and, as a consequence, the rights, and even the personal freedom, of some persons suffered abridgment.
  2. Possibly as a specific instance of the above-mentioned point, attention is drawn also to the invasion of privacy undertaken at the discretion vested in administrative officials.
  3. Although they may be thought to be unrelated to questions of civil liberties, the obvious disparities which occur in the application of policy are of concern in that they suggest a legitimating of inequities. As long as the inequitable treatment of persons by public officials is regarded as an example of ineffectiveness—to be remedied—the issue remains one of administrative and procedural problem solving. When officials may treat comparable situations inequitably, as a normal function of their discretionary powers, there would seem to be a concomitant power to abridge the freedoms and rights of persons. Capriciousness or arbitrariness in the exercise of official powers is clearly inimical to civil liberties.
  4. Our investigations discovered that information pertaining to regulations and to procedures is either sparse or is largely unavailable to the general public. This is graphically clear in the case of the immigration study where our investigators were unable to secure official documents that set out the grounds upon which discretionary judgments may be based.

If persons are denied access to information, including that pertaining to their rights to appeal proceedings, it is apparent that their capacity to protect their liberties against discretionary official acts is seriously curtailed.

The text of the two studies discussed here indicates questions which merit further probing. Some of these, of course, are dependent not only upon the necessary funding, but equally upon access to the requisite information. It is our hope that these further stages of study may be proceeded with in the hope that the above issues may be clarified and possible ameliorative proposals may be offered.