Canada (Citizenship and Immigration) v. Khosa

Canada (Citizenship and Immigration) v. Khosa
Collection
Supreme Court Judgments
Date
2009-03-06
Neutral citation
2009 SCC 12
Report
[2009] 1 SCR 339
Case number
31952
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Notes
SCC Case Information: 31952
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339
Date: 20090306
Docket: 31952
Between:
Minister of Citizenship and Immigration
Appellant
and
Sukhvir Singh Khosa
Respondent
‑ and ‑
Immigration and Refugee Board
Intervener
Coram: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 68)
Reasons Concurring in the Result:
(paras. 69 to 137)
Reasons Concurring in the Result:
(para. 138)
Dissenting Reasons:
(paras. 139 to 161)
Binnie J. (McLachlin C.J. and LeBel, Abella and Charron JJ. concurring)
Rothstein J.
Deschamps J.
Fish J.
* Bastarache J. took no part in the judgment.
______________________________
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339
Minister of Citizenship and Immigration Appellant
v.
Sukhvir Singh Khosa Respondent
and
Immigration and Refugee Board Intervener
Indexed as: Canada (Citizenship and Immigration) v. Khosa
Neutral citation: 2009 SCC 12.
File No.: 31952.
2008: March 20; 2009: March 6.
Present: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the federal court of appeal
Administrative law — Judicial review — Standard of review — Immigration Appeal Division denying special relief on “humanitarian and compassionate grounds” from removal order — Standard of review applicable to Immigration Appeal Division decision — Whether common law of judicial review displaced by s. 18.1 of Federal Courts Act, R.S.C. 1985, c. F‑7 — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 67(1) (c).
K, a citizen of India, immigrated to Canada with his family in 1996, at the age of 14. In 2002, he was found guilty of criminal negligence causing death and received a conditional sentence of two years less a day. A valid removal order was issued to return him to India.
K appealed the order, but the majority of the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board, after considering the Ribic factors and the evidence, denied “special relief” on humanitarian and compassionate grounds pursuant to s. 67(1) (c) of the Immigration and Refugee Protection Act (“IRPA ”). A majority of the Federal Court of Appeal applied a “reasonableness” simpliciter standard and set aside the IAD decision. It found that the majority of the IAD had some kind of fixation with the fact that the offence was related to street‑racing. On the issue of the “possibility of rehabilitation”, the majority of the IAD merely acknowledged the findings of the criminal courts in that regard, which were favourable to K, and did not explain why it came to the contrary conclusion. In the end, that court concluded that the majority of the IAD had acted unreasonably in denying relief.
Held (Fish J. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Binnie, LeBel, Abella and Charron JJ.: This Court’s decision in Dunsmuir, which was released after the decisions of the lower courts in this case, recognized that, with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision has been allocated to administrative decision-makers in matters that relate to their special role, function and expertise. A measure of deference is appropriate whether or not the court has been given the advantage of a statutory direction, explicit or by necessary implication. These general principles of judicial review are not ousted by s. 18.1 of the Federal Courts Act which deals essentially with grounds of review of administrative action, not standards of review. [25]
A legislature has the power to specify a standard of review if it manifests a clear intention to do so. However, where the legislative language permits, the court (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based in part on Dunsmuir including a restrained approach to judicial intervention in administrative matters. [51]
Resort to the flexibility of the general principle of judicial review is all the more essential in the case of a provision like s. 18.1 of the Federal Courts Act which is not limited to particular issues before a particular adjudicative tribunal but covers the full galaxy of federal decision-makers who operate in different decision‑making environments under different statutes with distinct grants of decision‑making powers. [28] [33]
The language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief. Despite a difference in the meaning of the English and French versions in the relevant language of s. 18.1(4), the provision should be interpreted to permit a court to exercise its discretion in matters of remedy depending on the court’s appreciation of the respective roles of the courts and the administration as well as the circumstances of each case. The discretion must be exercised judicially, but the appropriate judicial basis for its exercise includes the general principles dealt with in Dunsmuir. [36]
Dunsmuir establishes that there are now only two standards of review: correctness and reasonableness. No authority was cited suggesting that a “correctness” standard of review is appropriate for IAD decisions under s. 67(1) (c) of the IRPA , and the relevant factors in a standard of review inquiry point to a reasonableness standard. These factors include: (1) the presence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation — the IAD determines a wide range of appeals under the IRPA and its decisions are reviewable only if the Federal Court grants leave to commence judicial review; (3) the nature of the question at issue before the IAD — Parliament has provided in s. 67(1) (c) a power to grant exceptional relief and this provision calls for a fact‑dependent and policy‑driven assessment by the IAD itself; and (4) the expertise of the IAD dealing with immigration policy. These factors must be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case. [53‑57]
Where, as here, the reasonableness standard applies, it requires deference. Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes. In this case, the question whether K had established “sufficient humanitarian and compassionate considerations” to warrant relief from his removal order was a decision which Parliament confided to the IAD, not to the courts. [4] [59]
The IAD reasons, both the majority and dissent, disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome. At the factual level, the IAD divided in large part over differing interpretations of K’s expression of remorse. This is the sort of factual dispute which should be resolved by the IAD not the courts. The majority considered each of the Ribic factors, reviewed the evidence and decided that, in the circumstances of this case, discretionary relief should be refused. While the findings of the criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and second of the Ribic factors), were properly noted, the IAD had a mandate different from that of the criminal courts. The issue before it was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other relevant factors, they warranted special discretionary relief from a valid removal order. The IAD was required to reach its own conclusions based on its own appreciation of the evidence and it did so. [64‑66]
In light of the deference properly owed to the IAD under s. 67(1) (c) of the IRPA , there was no proper basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case. It cannot be said that this decision fell outside the range of reasonable outcomes. [60] [67]
Per Rothstein J.: Where a legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge. With respect to s. 18.1(4) of the Federal Courts Act , the language of para. (d) makes clear that findings of fact are to be reviewed on a highly deferential standard. Courts are only to interfere with a decision based on erroneous findings of fact where the federal board, commission or other tribunal’s factual finding was “made in a perverse or capricious manner or without regard for the material before it”. By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4) . Where Parliament intended a deferential standard of review in s. 18.1(4) , it used clear and unambiguous language, as it has in para. (d) regarding facts. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context. [70] [72] [113] [117]
While recourse to the common law is appropriate where Parliament has employed common law terms or principles without sufficiently defining them, it is not appropriate where the legislative scheme or provisions expressly or implicitly ousts the relevant common law analysis as is the case with s. 18.1(4) of the Federal Courts Act . Courts must give effect to the legislature’s words and cannot superimpose on them a duplicative common law analysis. The Dunsmuir standard of review should be confined to cases in which there is a strong privative clause. Excepting such cases, it does not apply to s. 18.1(4) . The application of Dunsmuir outside the strong privative clause context marks a departure from the conceptual and jurisprudential origins of the standard of review analysis. [70] [74] [106] [136]
The deference approach emerged as a means of reconciling Parliament’s intent to immunize certain administrative decisions from review with the supervisory role of courts in a rule of law system. The creation of expert administrative decision-makers evidenced a legislative intent to displace or bypass the courts as primary adjudicators in a number of areas, but it was only with the enactment of privative clauses, which marked the area of tribunal expertise that the legislature was satisfied warranted deference, that a legislature indicated an intent to oust, or at the very least restrict, the court’s review role. Whereas tribunal expertise was a compelling rationale for imposing a privative clause, it was not a free‑standing basis for deference. The approach of judicially imputing expertise which followed, even on questions of law, was a departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the legislature’s recognition of relative tribunal expertise. [79] [82‑84] [87]
There is no dispute that reviewing courts, whether in the appellate or judicial review contexts, should show deference to lower courts and administrative decision-makers on questions of fact and on questions involving mixed fact and law, where a legal issue cannot be extricated from a factual or policy finding. However, where a legal issue can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause. It is not for the court to impute tribunal expertise on legal questions, absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed. Recognizing expertise as a free‑standing basis for deference on questions that reviewing courts are normally considered to be expert on departs from the search for legislative intent that governs this area. [89-93]
Concerns regarding the rigidity of the legislated standards are misplaced. A review of the Federal Courts Act makes clear that the focus of the analysis should be on the nature of the question under review and not on the type of administrative decision-maker. Even given this legislative focus on the nature of the question under review, not all administrative decision-makers will be subject to the same standards of review. Where a decision-maker’s enabling statute purports to preclude judicial review on some or all questions through a privative clause, deference will apply and a Dunsmuir standard of review analysis will be conducted. [109‑110]
Section 18.1(4) confers on the Federal Courts the discretion to grant or deny relief in judicial review. The remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the review itself. The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies which is wholly distinct from the common law of standard of review analysis. Reliance upon this discretion contained in s. 18.1(4) to support the view that it opens the door to the Dunsmuir standard of review analysis is inappropriate. [131] [135-136]
The IAD’s decision not to grant relief in this case should be upheld. The application of the Ribic factors to the case before it and its exercise of discretion is fact‑based. The IAD’s factual findings were not perverse or capricious and were not made without regard to the evidence. [137]
Per Deschamps J.: There is agreement with Rothstein J. that since s. 18.1(4) of the Federal Courts Act sets legislated standards of review, those standards oust the common law. [138]
Per Fish J. (dissenting): The standard of review applicable is “reasonableness”, and the IAD’s decision does not survive judicial scrutiny under that standard. The IAD’s task was to look to “all the circumstances of the case” in order to determine whether “sufficient humanitarian and compassionate considerations” existed to warrant relief from a removal order. The IAD placed the greatest weight on three factors: K’s remorse, rehabilitation, and likelihood of reoffence. Despite abundant evidence that K was extremely unlikely to reoffend and had taken responsibility for his actions, the IAD focussed on a single fact — K’s denial that he was “street racing” — and based its refusal to grant relief largely on that fact alone. While K’s denial may well evidence some “lack of insight”, it cannot be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence. The IAD’s cursory treatment of the sentencing judge’s favourable findings on remorse and the risk of recidivism are particularly troubling. While a criminal court’s findings are not necessarily binding upon an administrative tribunal with a distinct statutory purpose and a different evidentiary record, it was incumbent upon the IAD to consider those findings and to explain the basis of its disagreement with the sentencing judge’s decision. K’s denial of street racing is, at best, of little probative significance in determining his remorse, rehabilitation and likelihood of reoffence. The IAD’s conclusion that there was “insufficient evidence” upon which a determination could be made that K does not represent a risk to the public is not only incorrect, but unreasonable. Decisions of the IAD are entitled to deference, but deference ends where unreasonableness begins. [139‑140] [145] [147] [149‑151] [153‑154] [160]
Cases Cited
By Binnie J.
Applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; distinguished: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779; referred to: R. v. Khosa, 2003 BCCA 645, 190 B.C.A.C. 42; Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL); Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Roncarelli v. Duplessis, [1959] S.C.R. 121; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326; Pringle v. Fraser, [1972] S.C.R. 821; Howarth v. National Parole Board, [1976] 1 S.C.R. 453; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Solosky v. The Queen, [1980] 1 S.C.R. 821; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Canada v. Grenier, 2005 CAF 348, [2006] 2 F.C.R. 287; Devinat v. Canada (Commission de l’immigration et du statut de réfugié), [2000] 2 F.C. 212; Thanabalasingham v. Canada (Minister of Citizenship and Immigration), 2006 FCA 14, 263 D.L.R. (4th) 51; Charette v. Canada (Commissioner of Competition), 2003 FCA 426, 29 C.P.R. (4th) 1; Pal v. Canada (Minister of Employment and Immigration) (1993), 24 Admin. L.R. (2d) 68; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
By Rothstein J.
Not followed: Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; applied: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779; considered: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; discussed: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; referred to: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Bell Canada v. Canada (Canadian Radio‑Television and Telecommunications Commission), [1989] 1 S.C.R. 1722; R. v. Robinson, [1996] 1 S.C.R. 683; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539; R. v. Holmes, [1988] 1 S.C.R. 914; Waldick v. Malcolm, [1991] 2 S.C.R. 456; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; Morneault v. Canada (Attorney General), [2001] 1 F.C. 30; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL); Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84.
By Fish J. (dissenting)
Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL); Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; R. v. Khosa, 2003 BCSC 221, [2003] B.C.J. No. 280 (QL); R. v. Khosa, 2003 BCCA 644, 190 B.C.A.C. 23.
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Employment Insurance Act, S.C. 1996, c. 23, s. 115(2) .
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Human Rights Code, C.C.S.M., c. H175, s. 50(1).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1) (h), 36(1) (a), 63 , 67(1) (c), 72 , 162(1) .
Interpretation Act, R.S.C. 1985, c. I‑21, s. 11 .
Judicial Review Act, R.S.P.E.I. 1988, c. J‑3, s. 4(1).
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Liquor Act, R.S.Y. 2002, c. 140, s. 118(1).
Occupational Health and Safety Act, S.N.B. 1983, c. O‑0.2, s. 26(5).
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Youth Protection Act, R.S.Q., c. P‑34.1, s. 74.2.
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APPEAL from a judgment of the Federal Court of Appeal (Desjardins, Décary and Malone JJ.A.), 2007 FCA 24, [2007] 4 F.C.R. 332, 276 D.L.R. (4th) 369, 360 N.R. 183, 59 Imm. L.R. (3d) 122, [2007] F.C.J. No. 139 (QL), 2007 CarswellNat 212, setting aside a decision of Lutfy C.J., 2005 FC 1218, 266 F.T.R. 138, 48 Imm. L.R. (3d) 253, [2005] F.C.J. No. 1465 (QL), 2005 CarswellNat 2651, dismissing the application for judicial review of the decision of the Immigration Appeal Division, [2004] I.A.D.D. No. 1268 (QL). Appeal allowed, Fish J. dissenting.
Urszula Kaczmarczyk and Cheryl D. Mitchell, for the appellant.
Garth Barriere and Daniel B. Geller, for the respondent.
Joseph J. Arvay, Q.C., and Joel M. Rubinoff, for the intervener.
The judgment of McLachlin C.J. and Binnie, LeBel, Abella and Charron JJ. was delivered by
[1] Binnie J. — At issue in this appeal is the extent to which, if at all, the exercise by judges of statutory powers of judicial review (such as those established by ss. 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 ) is governed by the common law principles lately analysed by our Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[2] The respondent, Khosa, applied unsuccessfully to the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board to remain in Canada, notwithstanding his conviction for criminal negligence causing death in an automobile street race. A valid removal order had been issued to return him to India. The majority of the IAD did not accept that there were “sufficient humanitarian and compassionate considerations [to] warrant special relief [against the removal order] in light of all the circumstances of the case” within the meaning of s. 67(1) (c) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA ”). Applying the “patent unreasonableness” standard of review, the judicial review judge at first instance dismissed Khosa’s challenge to the IAD decision. However, applying a “reasonableness” simpliciter standard of review, a majority of the Federal Court of Appeal set aside the IAD decision. Dunsmuir (decided subsequently to both lower court decisions) did away with the distinction between “patent unreasonableness” and “reasonableness simpliciter” and substituted a more context-driven view of “reasonableness” that nevertheless “does not pave the way for a more intrusive review by courts” (para. 48).
[3] The appellant Minister sought leave to appeal to this Court to argue that in any event s. 18.1 of the Federal Courts Act establishes a legislated standard of review that displaces the common law altogether. On this view, Dunsmuir is largely irrelevant to the current appeal. However, it is apparent that while the courts below differed on the choice of the appropriate common law standard of review, neither the judge at first instance nor any of the judges of the appellate court considered the common law of judicial review to be displaced by s. 18.1 of the Federal Courts Act . The trial court took the view that s. 18.1 of the Federal Courts Act deals essentially with grounds of review of administrative action, not standards of review, and the Federal Court of Appeal proceeded in the same way. I think this approach is correct although, as will be discussed, s. 18.1(4) (d) does provide legislative guidance as to “the degree of deference” owed to the IAD’s findings of fact.
[4] Dunsmuir teaches that judicial review should be less concerned with the formulation of different standards of review and more focussed on substance, particularly on the nature of the issue that was before the administrative tribunal under review. Here, the decision of the IAD required the application of broad policy considerations to the facts as found to be relevant, and weighed for importance, by the IAD itself. The question whether Khosa had shown “sufficient humanitarian and compassionate considerations” to warrant relief from his removal order, which all parties acknowledged to be valid, was a decision which Parliament confided to the IAD, not to the courts. I conclude that on general principles of administrative law, including our Court’s recent decision in Dunsmuir, the applications judge was right to give a higher degree of deference to the IAD decision than seemed appropriate to the Federal Court of Appeal majority. In my view, the majority decision of the IAD was within a range of reasonable outcomes and the majority of the Federal Court of Appeal erred in intervening in this case to quash it. The appeal is therefore allowed and the decision of the Immigration Appeal Division is restored.
I. Facts
[5] The respondent, Sukhvir Singh Khosa, is a citizen of India. He immigrated to Canada with his family in 1996, at the age of 14. He has landed immigrant status. During the evening of November 13, 2000, he and an individual named Bahadur Singh Bhalru, drove their respective cars at over 100 kilometres per hour along Marine Drive through a residential and commercial area of Vancouver. At their criminal trial, the court concluded that they were “street racing”. Khosa was prepared to plead guilty to a charge of dangerous driving, but not to the more serious charge of criminal negligence causing death, of which he was eventually convicted. The respondent continued to deny street racing, although he admitted that he was speeding and that his driving behaviour was exceptionally dangerous. On appeal from sentencing, the British Columbia Court of Appeal commented:
. . . it is significant that the respondents were racing. They were driving at excessive speeds in competition with each other on a major street lined with both commercial and residential properties. They did this at a time when other vehicles and pedestrians reasonably could be expected to be on the roads.
. . .
The “spontaneous” nature of the race . . . mitigates the severity with which it should be assessed. The race was not planned, did not involve vehicles specifically modified for the purpose of racing, and was of relatively short duration. As unacceptable as the conduct of the respondents was, it represented a reckless error in judgment more than a deliberate endangerment of the public.
(2003 BCCA 645, 190 B.C.A.C. 42, at paras. 33 and 36)
As to the “moral culpability” of the respondent and his co-accused, the Court of Appeal continued:
The Crown concedes that there are several factors which mitigate the moral culpability of the respondents in this case. Mr. Khosa and Mr. Bhalru are both young, have no prior criminal record or driving offences, have expressed remorse for the consequences of their conduct, and have favourable prospects for rehabilitation. . . . [para. 38]
[6] The respondent received a conditional sentence of two years less a day. The conditions included house arrest, a driving ban, and community service, all of which were complied with prior to the IAD hearing.
II. Judicial History
A. Immigration Appeal Division, [2004] I.A.D.D. No. 1268 (QL)
(1) The Majority
[7] The majority of the IAD recognized (at para. 12) that its discretionary jurisdiction to grant “special relief” on humanitarian and compassionate grounds under s. 67(1) (c) of the IRPA should be exercised in light of the factors adopted in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at paras. 40, 41 and 90, namely:
(1) the seriousness of the offence leading to the removal order;
(2) the possibility of rehabilitation;
(3) the length of time spent, and the degree to which the individual facing removal is established, in Canada;
(4) the family and community support available to the individual facing removal;
(5) the family in Canada and the dislocation to the family that removal would cause; and
(6) the degree of hardship that would be caused to the individual facing removal to his country of nationality.
[8] The majority considered that the last four Ribic factors were not particularly compelling for or against relief. As to the first two factors, the offence in question was “extremely serious” (para. 14) and the majority expressed particular concern over Khosa’s refusal to accept without reservation the finding that he had been street racing. The IAD majority considered that this refusal “reflects a lack of insight into his conduct” (para. 15). As to Khosa’s prospects for rehabilitation, the majority decided that there was insufficient evidence upon which to make a finding one way or the other (paras. 15 and 23). However, even if Khosa had good prospects for rehabilitation, “balancing all the relevant factors, . . . the scale does not tip in [Khosa’s] favour” (para. 23). Accordingly, “special relief” was denied.
(2) The Dissent
[9] The dissenting member of the IAD would also have denied the appeal, but she would have stayed the execution of the deportation order pending a further review in three years. She acknowledged the seriousness of the offence for which Khosa was convicted but found that it was mitigated by matters not considered important by the majority. Evidence of remorse and rehabilitation favoured relief. Having regard to the criminal proceedings, she noted that no penitentiary term was considered appropriate. The crime of which Khosa was convicted is not one of intent. There was no evidence of criminal propensity. The race was spontaneous and short. All sentencing conditions had been complied with. In the circumstances, she concluded that relief ought to be granted on humanitarian and compassionate grounds.
B. Federal Court, 2005 FC 1218, 266 F.T.R. 138
[10] Lutfy C.J. dismissed Khosa’s application for judicial review. He found that considerable deference was required, given the broad nature of the discretion vested in the IAD and its expertise in applying Ribic factors in appeals under s. 67(1) (c) of the IRPA . The appropriate standard of review is patent unreasonableness. Whether or not the IAD majority erred in its appreciation of the evidence in light of the Ribic factors is “substantially, if not completely, factual” (para. 29).
[11] Lutfy C.J. said that the crux of Khosa’s argument was that the majority of the IAD erred by placing inordinate emphasis on his denial that his admittedly dangerous driving took place in the context of a street race, but the judge declined to reweigh the evidence, saying (at para. 36):
In assessing Mr. Khosa’s expression of remorse, they [the majority] chose to place greater weight on his denial that he participated in a “race” than others might have. The IAD conclusion on the issue of remorse appears to differ from that of the criminal courts. The IAD, however, unlike the criminal courts, had the opportunity to assess Mr. Khosa’s testimony.
[12] In the result, Lutfy C.J. held that there was no basis for concluding that “the majority opinion is patently unreasonable or, in the words of paragraph 18.1(4) (d) of the Federal Courts Act , one which was based on an erroneous finding of fact ‘made in a perverse or capricious manner or without regard for the material’” (para. 39).
C. Federal Court of Appeal, 2007 FCA 24, [2007] 4 F.C.R. 332
(1) The Majority
[13] Décary J.A. (Malone J.A. concurring) disagreed with Lutfy C.J. on the appropriate standard of review. In his view, the applicable standard was “reasonableness”. Accordingly, “[s]ince the applications Judge applied the wrong standard of review, it is my duty, on appeal, to review the Board’s decision on the correct standard of review, that is, on the standard of reasonableness” (para. 14).
[14] With respect to the second Ribic factor, Décary J.A. said that the “possibility of rehabilitation” is a criminal law concept with which the IAD does not have particular expertise. It should be wary of questioning findings of the criminal courts on matters falling squarely within their expertise. The majority “merely acknowledges the findings of the British Columbia courts in that regard, which are favourable to [Khosa], and does not explain why it comes to the contrary conclusion . . . . The whole of the evidence with respect to the conduct of [Khosa] after his sentencing undisputedly strengthens the findings of the criminal courts. Yet, the Board ignores that evidence and those findings” (para. 17). As to the “street racing” issue, Décary J.A. said:
It clearly appears from the transcripts of the hearing that the presiding member — who wrote the majority decision — and counsel for the Crown, had some kind of fixation with the fact that the offence was related to street racing, to such a point that the hearing, time and time again, was transformed into a quasi-criminal trial, if not into a new criminal trial. [para. 18]
For these reasons, Décary J.A. concluded that the majority had acted unreasonably.
(2) The Dissent
[15] Desjardins J.A. concluded that the applications judge was right to apply the “patent unreasonableness” standard. She emphasized that the IAD has expertise in applying the Ribic factors in decisions under s. 67(1) (c) of the IRPA and that this exercise is “highly fact-based and contextual” (para. 36). Desjardins J.A. also emphasized the broad discretion conferred upon the IAD by s. 67(1) (c) of the IRPA . In her view, Lutfy C.J. had made no reviewable error. She would have dismissed the appeal.
III. Relevant Statutory Provisions
[16] Immigration and Refugee Protection Act, S.C. 2001, c. 27
3. (1) The objectives of this Act with respect to immigration are
. . .
(h) to protect the health and safety of Canadians and to maintain the security of Canadian society;
36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
. . .
(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
Federal Courts Act, R.S.C. 1985, c. F-7
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
(3) On an application for judicial review, the