Pushpanathan v. Canada (Minister of Citizenship and Immigration)

Pushpanathan v. Canada (Minister of Citizenship and Immigration)
Collection
Supreme Court Judgments
Date
1998-06-04
Report
[1998] 1 SCR 982
Case number
25173
Judges
L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Major, John C.; Bastarache, Michel
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Immigration
Notes
SCC Case Information: 25173
Decision Content
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982
Veluppillai Pushpanathan (Pushpanathan Veluppillai) Appellant
v.
The Minister of Citizenship and Immigration Respondent
and
The Canadian Council for Refugees Intervener
Indexed as: Pushpanathan v. Canada (Minister of Citizenship and Immigration)
File No.: 25173.
1997: October 9; 1998: June 4.
Present: L’Heureux‑Dubé, Sopinka,* Gonthier, Cory, McLachlin, Major and Bastarache JJ.
on appeal from the federal court of appeal
Administrative law ‑‑ Standard of review ‑‑ Immigration and Refugee Board ‑‑ Standard of review applicable to Board’s decision.
Immigration ‑‑ Convention refugee ‑‑ Exclusion ‑‑ Refugee Convention not applicable to those who are “guilty of acts contrary to the purposes and principles of the United Nations” ‑‑ Individual guilty of serious narcotics offence in Canada claiming refugee status ‑‑ Whether claim for refugee status should be denied ‑‑ Meaning of phrase “guilty of acts contrary to the purposes and principles of the United Nations” ‑‑ Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, Art. 1F(c) .
In 1985, the appellant claimed refugee status under the UN Convention Relating to the Status of Refugees (“Convention”), as implemented by the Immigration Act, but his claim was never adjudicated as he was granted permanent residence status in Canada under an administrative program. The appellant was later arrested in Canada and charged with conspiracy to traffic in a narcotic. At the time of his arrest, he was a member of a group in possession of heroin with a street value of some $10 million. He pleaded guilty and was sentenced to eight years in prison. In 1991, the appellant, then on parole, renewed his claim for Convention refugee status. Employment and Immigration Canada subsequently issued a conditional deportation order against him under ss. 27(1)(d) and 32.1(2) of the Act. Since the deportation pursuant to those sections is conditional upon a determination that the claimant is not a Convention refugee, the appellant’s claim was referred to the Convention Refugee Determination Division of the Immigration and Refugee Board. The Board decided that the appellant was not a refugee by virtue of the exclusion clause in Art. 1F(c) of the Convention, which provides that the provisions of the Convention do not apply to a person who “has been guilty of acts contrary to the purposes and principles of the United Nations”. The Federal Court, Trial Division dismissed the appellant’s application for judicial review and certified the following as a serious question of general importance for consideration: Is it an error of law for the Refugee Division to interpret Art. 1F(c) of the Convention to exclude from refugee status an individual guilty of a serious narcotics offence committed in Canada? The Federal Court of Appeal answered “no” and upheld the judgment of the Trial Division.
Held (Cory and Major JJ. dissenting): The appeal should be allowed.
Per L’Heureux‑Dubé, Gonthier, McLachlin and Bastarache JJ.: A pragmatic and functional analysis of the Immigration Act leads to the conclusion that, in this case, the correctness standard should be applied to the Board’s decision. The use of the words “a serious question of general importance” in s. 83(1) of the Act is the key to the legislative intention as to the standard of review. The general importance of the question ‑‑ that is, its applicability to numerous future cases ‑‑ warrants the review by a court of justice. Moreover, the purpose of Art. 1F(c) of the Convention is to protect human rights and the Board appears to enjoy no relative expertise in that matter. The Board’s expertise is in accurately evaluating whether the criteria for refugee status have been met and, in particular, in assessing the nature of the risk of persecution faced by the applicant if returned to his country of origin. The relationship between the Board’s expertise and Art. 1F(c) is thus remote. Nor is there any indication that the Board’s experience with previous factual determinations of risk of persecution gives it any added insight into the meaning or desirable future development of that provision. The legal principle here is easily separable from the undisputed facts of the case and would undoubtedly have a wide precedential value. The factual expertise enjoyed by the Board does not aid it in the interpretation of this general legal principle. Furthermore, the Board itself is not responsible for policy evolution. Finally, the absence of a strong privative clause is another factor militating against deference.
Since the purpose of the Immigration Act incorporating Art. 1F(c) is to implement the underlying Convention, an interpretation consistent with Canada’s obligations under the Convention must be adopted. The wording of the Convention and the rules of treaty interpretation are therefore applicable to determine the meaning of Art. 1F(c) in domestic law. The general words “purposes and principles of the United Nations” in Art. 1F(c) are not so unambiguous as to foreclose examination of other indications of the proper scope of the provision. The purpose and context of the Convention as a whole, as well as the purpose of the individual provision in question as suggested by the travaux préparatoires, provide helpful interpretative guidelines.
The Convention has a human rights character. While Art. 1 of the Convention defines who is a refugee, the general purpose of Art. 1F is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status. The purpose of Art. 33 of the Convention, by contrast, is to allow for the refoulement of a bona fide refugee to his native country where he poses a danger to the security of the country of refuge, or to the safety of the community. Although all of the acts described in Art. 1F could presumably fall within the grounds for refoulement described in Art. 33, the two are distinct. Article 1F(c) is not limited to acts performed outside the country of refuge. The relevant criterion under Art. 1F(c) is the time at which refugee status is obtained and any act performed before a person has obtained that status must be considered relevant pursuant to Art. 1F(c). The rationale of Art. 1F of the Convention is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a convention designed to protect those refugees. In the light of the general purposes of the Convention and the indications in the travaux préparatoires as to the relative ambit of Arts. 1F(a) and 1F(c), the purpose of Art. 1F(c) is to exclude those individuals responsible for serious, sustained or systemic violations of fundamental human rights which amount to persecution in a non‑war setting. Article 1F(c) may be applicable to non‑state actors. Although it may be more difficult for a non‑state actor to perpetrate human rights violations on a scale amounting to persecution without the state thereby implicitly adopting those acts, the possibility should not be excluded a priori.
Article 1F(c) will thus be applicable where there is consensus in international law that particular acts constitute sufficiently serious and sustained violations of fundamental human rights as to amount to persecution, or are explicitly recognized as contrary to the UN purposes and principles. First, where a widely accepted international agreement or UN resolution explicitly declares that the commission of certain acts is contrary to the UN purposes and principles, then there is a strong indication that those acts will fall within Art. 1F(c). Where such declarations or resolutions represent a reasonable consensus of the international community, then that designation should be considered determinative. A second category of acts which fall within the scope of Art. 1F(c) are those which a court is able, for itself, to characterize as serious, sustained and systemic violations of fundamental human rights constituting persecution. Where the rule which has been violated is very near the core of the most valued principles of human rights and is recognized as immediately subject to international condemnation and punishment, then even an isolated violation could lead to an exclusion under Art. 1F(c). The status of a violated rule as a universal jurisdiction offence would be a compelling indication that even an isolated violation constitutes persecution. A serious and sustained violation of human rights amounting to persecution may also arise from a particularly egregious factual situation, including the extent of the complicity of the claimant.
Conspiring to traffic in a narcotic is not a violation of Art. 1F(c). Even though international trafficking in drugs is an extremely serious problem that the UN has taken extraordinary measures to eradicate, in the absence of clear indications that the international community recognizes drug trafficking as a sufficiently serious and sustained violation of fundamental human rights as to amount to persecution, either through a specific designation as an act contrary to the UN purposes and principles, or through international instruments which otherwise indicate that trafficking is a serious violation of fundamental human rights, individuals should not be deprived of the essential protections contained in the Convention for having committed those acts. Article 33 of the Convention and its counterparts in the Immigration Act, ss. 53 and 19, are designed to deal with the expulsion of individuals who present a threat to Canadian society, and the grounds for such a determination are wider and more clearly articulated. The Minister, therefore, is not precluded from taking appropriate measures to ensure the safety of Canadians. Lastly, the presence of Art. 1F(b), which excludes from the protection of the Convention a person who has committed a serious non‑political crime outside the country of refuge prior to his admission to that country as a refugee, suggests that even a serious non‑political crime such as drug trafficking should not be included in Art. 1F(c).
Per Cory and Major JJ. (dissenting): What constitutes an act “contrary to the purposes and principles of the United Nations” for the purposes of the Convention is a question of law. While the Immigration and Refugee Board must be accorded some deference in its findings of fact, that deference should not be extended to a finding on a question of law. The Board cannot be said to have any particular expertise in legal matters. Therefore the issue is whether the Board’s decision on the question of law was correct.
The category of acts contrary to the UN purposes and principles should not be restricted to those expressly declared to be so. A domestic tribunal is entitled, upon considering the relevant material, to find that the phrase includes other types of acts. While not every UN initiative is so central to its purposes and principles that any act which violates or undermines those initiatives is contrary to the UN purposes and principles, some problems have been recognized by the international community as being so serious and of such a nature that they pose a threat to the entire international community and the principles of its social order. Conduct which directly or significantly contributes to these problems or which violates agreed principles or obligations with respect to them should, in appropriate cases, be regarded as contrary to the UN purposes and principles.
While serious or systematic violation of human rights would be conduct that is contrary to the UN purposes and principles, it is not the only conduct that should be considered in interpreting Art. 1F(c) of the Convention. The determination of what constitutes an act contrary to the UN purposes and principles need not be limited to the consideration of one purpose notwithstanding the fact that it is important and that the Convention is a human rights instrument. Although the purpose of the instrument will be taken into account in interpreting its provisions, it must not restrict the content of the exclusion so as to limit it to conduct relating directly to human rights. All of the UN purposes and principles should be considered. Furthermore, some types of conduct may indirectly but significantly contribute to the violation of human rights.
The Convention should be interpreted in a manner consistent with the contemporary context. As international law develops, the content of a phrase such as “acts contrary to the purposes and principles of the United Nations” must be capable of development. Courts should recognize that the guidance provided by interpretive aids such as the travaux préparatoires and subsequent practice must be considered in the light of the current state of the law and international understandings. The travaux préparatoires should be taken into account, yet this does not mean that courts are restricted to a precise interpretation of that material. Rather, consideration should be given to the underlying principles and concerns that they express with the aim of giving them a contemporary meaning. Similarly, with regard to state practice, some consistency should be maintained with the line of interpretation revealed by the practice of state parties, but that interpretation must be adjusted to take into account evolving ideas and principles in international law.
Although traditionally it was thought that the UN purposes and principles, like international law generally, are addressed only to states, and can be violated only by state actors, it is now generally accepted that an individual acting in his private capacity can commit acts which constitute violations of international law.
Significant trafficking in a dangerous illicit drug can constitute an act which is contrary to the UN purposes and principles and would thus form the basis of exclusion from refugee status pursuant to Art. 1F(c). The rationale for including illicit drug trafficking in Art. 1F(c) is the reality that this activity is recognized, both legally and practically, as an activity that not only is a domestic criminal offence, but occasions very serious and significant harm in the international community. The categorization of an act as an international crime or crime of international concern is not determinative of the question. The additional factor which distinguishes illicit drug trafficking from some other “crimes of international concern” or UN initiatives is the nature and gravity of the harm to people in countries around the world and to the international community as a whole that results from this activity. The harm caused by the illicit traffic in drugs is of the utmost severity. This illicit traffic takes a dreadful toll on the lives of individuals, families and communities. It destabilizes and retards the development of whole nations and regions. Drug trafficking now also threatens peace and security at a national and international level. It affects the sovereignty of some states, the right of self‑determination and democratic government, economic, social and political stability and the enjoyment of human rights. Many of the UN purposes and principles are undermined, directly or indirectly, by the international trade in illicit drugs. It is on this basis that at least some individuals who participate in and contribute to this activity must be considered to be committing acts contrary to the UN purposes and principles.
The statements on this subject by the international community, including the relevant conventions and General Assembly resolutions, reflect an acute awareness of the nature and gravity of the problem, and a severe condemnation of the activities that give rise to the problem. While the UN has never specifically declared that drug trafficking is contrary to its purposes and principles, it has clearly and frequently recognized and denounced the evils of this activity. There are also many statements reflecting an awareness that trafficking threatens essential aspects of the UN purposes and principles. The statements of the UN and of the international community lead inexorably to the conclusion that those engaged in trafficking in illicit drugs are responsible, directly or indirectly, for harms that are so widespread and so severe that they undermine the very purposes and principles upon which the UN is based. It follows that their actions must be considered “acts contrary to the purposes and principles of the United Nations” and thus come within the exclusion set out in Art. 1F(c). However, not all acts within the broad category of illicit drug trafficking constitute acts contrary to the UN purposes and principles. Distinctions must be drawn based on the type and scale of activities. It is those actually engaged in trafficking who reap most of the profits, cause the greatest harm and therefore bear the greatest responsibility for perpetuating the illicit trade. Those who are merely consumers are often victims themselves and do not bear the same responsibility.
Here, the appellant was an important participant in a major drug operation with an organized group trafficking in heroin. He trafficked on a large scale in the most debilitating of drugs. While not every domestic narcotics offence will provide a basis for exclusion under Art. 1F(c), in light of the seriousness of the appellant’s crime he should, as a result of his actions, be excluded.
Cases Cited
By Bastarache J.
Considered: Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741; referred to: Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Yuen v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1045 (QL); Franco v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1011 (QL); Sornalingam v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 128; Vetter v. Canada (Minister of Employment and Immigration) (1994), 89 F.T.R. 17; Ismaeli v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 573 (QL); Connor v. Canada (Minister of Citizenship and Immigration) (1995), 95 F.T.R. 66; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Thomson v. Thomson, [1994] 3 S.C.R. 551; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298; Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433; United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16.
By Cory J. (dissenting)
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
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APPEAL from a judgment of the Federal Court of Appeal, [1996] 2 F.C. 49, 191 N.R. 247, [1995] F.C.J. No. 1716 (QL), affirming a decision of the Federal Court, Trial Division, [1993] F.C.J. No. 870 (QL), dismissing the appellant’s application for judicial review of a decision of the Immigration and Refugee Board, [1993] C.R.D.D. No. 12 (QL) (sub nom. D. (N.U.) (Re)), rejecting his claim for Convention refugee status. Appeal allowed, Cory and Major JJ. dissenting.
Lorne Waldman and Jaswinder Singh Gill, for the appellant.
Urszula Kaczmarczyk and Bonnie Boucher, for the respondent.
David Matas and Sharryn Aiken, for the intervener.
The judgment of L’Heureux-Dubé, Gonthier, McLachlin and Bastarache JJ. was delivered by
//Bastarache J.//
1 Bastarache J. — This appeal raises two important questions relating to who may be admitted to Canada as a refugee: first, the proper standard of judicial review over decisions of the Immigration and Refugee Board; second, the meaning of the exclusion from refugee status of those who are “guilty of acts contrary to the purposes and principles of the United Nations”. That exclusion, in Article 1F(c) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, is incorporated into Canadian law by s. 2(1) of the Immigration Act, R.S.C., 1985, c. I-2, requiring a definition of that phrase with respect to the domestic law of Canada.
I. Factual Background
2 The relevant facts in this case are not the subject of dispute. The appellant, Veluppillai Pushpanathan, left his native Sri Lanka in 1983 and spent time in India and France before arriving in Canada, via Italy, on March 21, 1985. He claimed Convention refugee status under the Immigration Act (formerly Immigration Act, 1976, S.C. 1976-77, c. 52). The basis of the claim was that he had previously been detained by the Sri Lankan authorities for his political activities and would likely suffer persecution if returned to his country of citizenship. This claim was never adjudicated, however, as the appellant was granted permanent residence status in May 1987 under an administrative program, and was entitled to remain in Canada on that basis.
3 In December 1987, the appellant was arrested along with seven others on charges of conspiracy to traffic in a narcotic under s. 423(1)(d) of the Criminal Code, R.S.C. 1970, c. C-34, and s. 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1. The appellant pleaded guilty to the offence and was among five of the group who were convicted. The appellant himself sold brown heroin to an RCMP officer on at least three occasions; at the time of the arrest, the group to which Mr. Pushpanathan belonged possessed heroin with a street value of some $10 million. Mr. Pushpanathan was sentenced to eight years in prison, while his co-conspirators received between four- and ten-year terms each.
4 On September 23, 1991, the appellant, then on parole, renewed his claim to Convention refugee status under the United Nations Convention Relating to the Status of Refugees (the “Convention”), as implemented by the Immigration Act (the “Act”). I describe the application as a renewal because it is unclear that the initial claim made in March 1985 was ever abandoned. On June 22, 1992, a conditional deportation order was issued by Employment and Immigration Canada against Mr. Pushpanathan under s. 27(1)(d) and s. 32.1(2) of the Act, which provide that a permanent resident who has been convicted of an offence for which a sentence of more than six months’ imprisonment has been imposed, may be deported. Since the deportation pursuant to those sections is conditional upon a determination that the claimant is not a Convention refugee, Mr. Pushpanathan’s claim to Convention refugee status was referred to the Convention Refugee Determination Division of the Immigration and Refugee Board. The Board decided that the appellant was not a Convention refugee. The Federal Court, Trial Division and the Federal Court of Appeal refused to reverse that decision on an application for judicial review. Mr. Pushpanathan appeals to this Court.
II. Statutory Framework
5 Section 2(1) of the Act defines a “Convention refugee” as:
. . . any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person’s nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country . . .
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
6 That article of the Convention reads:
Article 1
Definition of the Term “Refugee”
. . .
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
7 Persons described in these paragraphs cannot benefit from any of the protections of the Convention. They are denied refugee status from the outset.
8 The importance of the exclusions found in Article 1 can only be understood in the context of other sections of the Convention which describe the limited conditions under which bona fide refugees may be denied the benefits of their status:
Article 33
Prohibition of Expulsion or Return (“Refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
9 The precise circumstances in which Article 33(2) is satisfied are defined with greater particularity in the Act:
53. (1) Notwithstanding subsections 52(2) and (3) [which describe the Minister’s deportation power], no person who is determined under this Act or the regulations to be a Convention refugee . . . shall be removed from Canada to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless
(a) the person is a member of an inadmissible class described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; or
(b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada.
10 The paragraph potentially applicable to the appellant’s situation is 19(1)(c):
exclusion and removal
Inadmissible Classes
19. (1) No person shall be granted admission who is a member of any of the following classes:
. . .
(c) persons who have been convicted in Canada of an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more;
11 Other grounds justifying the refoulement of a refugee described in s. 19 include: conviction outside of Canada for an offence which, if committed in Canada, would be subject to a maximum term of imprisonment of ten years or more (19(1)(c.1)(i)); previous acts of terrorism, espionage, or subversion of democratic government, or grounds to believe that such acts will be committed in the future (19(1)(e) and (f)); grounds to believe that an individual will engage in violence in Canada (19(1)(g)); commission of war crimes or crimes against humanity (19(1)(j)); persons who constitute a danger to the security of Canada (19(1)(k)); and, membership or participation in a government engaged in terrorism, systematic or gross human rights violations, or war crimes or crimes against humanity (19(1)(l)).
12 Where one of these grounds is found to exist, the Minister must then make the added determination that the person poses a danger to the safety of the public or to the security of the country under s. 53(1)(a) or (b) respectively in order to justify refoulement.
13 By contrast, persons falling within Article 1F of the Convention are automatically excluded from the protections of the Act. Not only may they be returned to the country from which they have sought refuge without any determination by the Minister that they pose a threat to public safety or national security, but their substantive claim to refugee status will not be considered. The practical implications of such an automatic exclusion, relative to the safeguards of the s. 19 procedure, are profound.
14 It is against this background that the interpretation of the exclusion contained in Article 1F(c) of the Convention must be considered.
III. Judicial History
A. The Immigration and Refugee Board
15 The panel of the Immigration and Refugee Board ruled that Mr. Pushpanathan was not a refugee by virtue of the exclusion clause in Article 1F(c): [1993] C.R.D.D. No. 12 (QL) (sub nom. D. (N.U.) (Re)). It also found that by trafficking in narcotics, the appellant had committed a crime against humanity under Article 1F(a). The parties agree that this finding was in error and have not argued the point in any of the appeals.
16 Citing numerous United Nations conventions, the panel considered it “clear that for many years the United Nations has devoted a great deal of time and energy to the suppression of illicit traffic in drugs”. The panel accepted that suppression of this traffic is one of the purposes and principles of the United Nations, and that trafficking in heroin was an action against those purposes and principles. It also rejected the assertion that Article 1F(c) should apply only to state agents, or only to crimes committed outside the country of refuge.
B. Application for Judicial Review to the Federal Court, Trial Division
17 An application for judicial review under s. 82.1(1) of the Act was made to the Federal Court, which dismissed the application: [1993] F.C.J. No. 870 (QL). McKeown J. found that the Board had “reasonably concluded” and that t