Mason v. Canada (Citizenship and Immigration)

Mason v. Canada (Citizenship and Immigration)
Collection
Supreme Court Judgments
Date
2023-09-27
Neutral citation
2023 SCC 21
Case number
39855
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Immigration
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21
Appeal Heard: November 29, 2022 Judgment Rendered: September 27, 2023 Docket: 39855
Between:
Earl Mason Appellant
and
Minister of Citizenship and Immigration Respondent
And Between:
Seifeslam Dleiow Appellant
and
Minister of Citizenship and Immigration Respondent
- and -
Attorney General of Ontario, Attorney General of Saskatchewan, Canadian Council for Refugees, Canadian Association of Refugee Lawyers, Social Planning Council of Winnipeg, Canadian Muslim Lawyers Association, United Nations High Commissioner for Refugees, Amnesty International Canadian Section (English Speaking), Community & Legal Aid Services Program, Association québécoise des avocats et avocates en droit de l’immigration and Criminal Lawyers’ Association (Ontario) Interveners
Coram: Wagner C.J. and Karakatsanis, Côté, Brown,* Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
Reasons for Judgment: (paras. 1 to 123)
Jamal J. (Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer and O’Bonsawin JJ. concurring)
Concurring Reasons: (paras. 124 to 189)
Côté J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
* Brown J. did not participate in the final disposition of the judgment.
Earl Mason Appellant
v.
Minister of Citizenship and Immigration Respondent
- and -
Seifeslam Dleiow Appellant
v.
Minister of Citizenship and Immigration Respondent
and
Attorney General of Ontario,
Attorney General of Saskatchewan,
Canadian Council for Refugees,
Canadian Association of Refugee Lawyers,
Social Planning Council of Winnipeg,
Canadian Muslim Lawyers Association,
United Nations High Commissioner for Refugees,
Amnesty International Canadian Section (English Speaking),
Community & Legal Aid Services Program,
Association québécoise des avocats et avocates en droit de l’immigration and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: Mason v. Canada (Citizenship and Immigration)
2023 SCC 21
File No.: 39855.
2022: November 29; 2023: September 27.
Present: Wagner C.J. and Karakatsanis, Côté, Brown,* Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
on appeal from the federal court of appeal
Administrative law — Judicial review — Standard of review — Application of Vavilov framework to judicial review of administrative decisions involving question of statutory interpretation in immigration context — Standard of review applicable where serious question of general importance for appeal certified by Federal Court.
Immigration — Judicial review — Inadmissibility and removal — Foreign nationals found inadmissible on security grounds by administrative tribunal for engaging in acts of violence that would or might endanger the lives or safety of persons in Canada — Administrative tribunal interpreting statutory provision at issue as not requiring proof of conduct having nexus to national security or security of Canada — Applications for judicial review to Federal Court allowed but Federal Court of Appeal ruling that interpretation by administrative tribunal was reasonable — Whether standard of review properly applied by reviewing courts — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 34(1) (e).
M and D are both foreign nationals in Canada. In 2012, M was charged with two counts of attempted murder and two counts of discharging a firearm following an argument with a man in a bar during which M fired a gun. The charges were eventually stayed because of delay. In unrelated incidents, D was alleged to have engaged in acts of violence against intimate partners and other persons. Some of the criminal charges flowing from these incidents were stayed and he pled guilty to three charges and received a conditional discharge.
Following these incidents, inadmissibility reports were prepared alleging that both M and D were inadmissible to Canada on “security grounds” under s. 34(1) (e) of the Immigration and Refugee Protection Act (“IRPA ”), which provides that a permanent resident or foreign national is inadmissible for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. The reports were referred to the Immigration Division (“ID”) for admissibility hearings. It was not alleged that either M or D engaged in acts of violence with a link to national security or the security of Canada. In M’s case, the ID ruled that a “security ground” under s. 34(1) means a threat to the security of Canada or another country, and that the act of violence in question must have some connection to a threat to the security of Canada. As M’s alleged conduct lacked any element that would elevate it to security grounds, s. 34(1)(e) could not apply. The Immigration Appeal Division (“IAD”), however, allowed the Minister’s appeal and concluded that inadmissibility under s. 34(1)(e) related to security in a broader sense, namely, to ensure that individual Canadians are secure from acts of violence that would or might endanger their lives or safety. In D’s case, the ID followed the IAD’s interpretation of s. 34(1)(e) in M’s case, concluded that D was inadmissible, and issued a deportation order.
The Federal Court allowed M and D’s applications for judicial review, ruling that it was unreasonable to interpret s. 34(1)(e) as applying to acts of violence without a nexus to national security. In both cases, the Federal Court certified, under s. 74 (d) of the IRPA , the following serious question of general importance for appeal to the Federal Court of Appeal: Is it reasonable to interpret s. 34(1) (e) of the IRPA in a manner that does not require proof of conduct that has a nexus with “national security” or “the security of Canada”? The Federal Court of Appeal allowed the Minister’s appeals, holding that the IAD in M’s case and ID in D’s case had reasonably interpreted s. 34(1)(e) as not requiring a nexus to national security or the security of Canada.
Held: The appeals should be allowed. In M’s appeal, the IAD decision should be quashed. In D’s appeal, the ID decision and deportation order should be quashed.
Per Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.: Applying the Vavilov framework to the instant appeals, the appropriate standard of review of the administrative decisions is reasonableness. No established exception to the presumption of reasonableness review applies, nor should any new exception be created on the basis that the appeals involved a serious question of general importance certified for appeal to the Federal Court of Appeal. In the instant cases, both administrative decisions were unreasonable. The relevant legal constraints point overwhelmingly to a single reasonable interpretation of s. 34(1)(e) — a person can be found inadmissible under s. 34(1)(e) only if they engage in acts of violence with a nexus to national security or the security of Canada.
In Vavilov, the Court established a presumption that when a court reviews the merits of an administrative decision, the standard of review is reasonableness. This presumption is rebutted in two types of situations — where the legislature has indicated that it intends a different standard or set of standards to apply or where the rule of law requires that the standard of correctness be applied — which together provide six categories of correctness review. The first situation provides for two categories of correctness review: when the legislature explicitly prescribes the standard of review, and when it provides for an appeal from an administrative decision to a court. With respect to the second situation, Vavilov sets out three categories of questions that the rule of law requires to be reviewed on a standard of correctness: constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies. A sixth category of correctness review was recognized by the Court in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30: when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute.
None of the established exceptions to the presumption of reasonableness review applies in the instant cases: the legislature has not explicitly prescribed the standard of review or provided a statutory appeal mechanism from an administrative decision to a court, and the standard of correctness is not required based on the rule of law. The proper interpretation of s. 34(1) (e) of the IRPA is not a general question of law of central importance to the legal system as a whole. Although it is important for the affected persons and the proper administration of the IRPA , it does not affect the legal system or the administration of justice as a whole, have legal implications for many other statutes, or affect other institutions of government; rather, the issues raised are particular to the interpretation of the conditions for inadmissibility under s. 34(1)(e). Moreover, the proper interpretation of s. 34(1)(e) is not a constitutional question or a question related to the jurisdictional boundaries between two or more administrative bodies, nor does it engage the correctness category recognized in Society of Composers.
The certified question regime under s. 74 (d) of the IRPA does not displace the presumption of reasonableness review and warrant a new category of correctness. The Federal Court’s certification of a question for appeal to the Federal Court of Appeal provides for a statutory appeal of the Federal Court’s decision to the Federal Court of Appeal, but it does not change the standard of review to be applied by either court. First, the Federal Court’s decision to certify a serious question of general importance under s. 74(d) does not affect the standard of review to be applied by the Federal Court itself on an application for judicial review. The certified question procedure plays a gatekeeping role by requiring that the matter meet a threshold of importance to merit an appeal to the Federal Court of Appeal. The certified question may be the trigger by which an appeal is permitted, but the subject of the appeal is still the judgment itself, not merely the certified question. Thus, the certified question regime does not amount to rare and exceptional circumstances in which the Federal Court applying reasonableness review would undermine legislative intent or the rule of law in a manner analogous to the existing correctness categories.
Second, the certification of a serious question of general importance does not require correctness review by the Federal Court of Appeal or the Supreme Court. As a matter of precedent, the Court has concluded in the immigration context that despite the presence of a certified question, the standard of review is reasonableness. Vavilov does not require that conclusion to be revisited. Certification of a question does not signal that the legislature intended that appellate courts apply correctness review. The Federal Court of Appeal’s task in an appeal from a decision of the Federal Court in an application for judicial review is to determine whether the Federal Court identified the appropriate standard of review and then to decide whether it applied that standard properly. The certified question regime neither rebuts the presumption of reasonableness, nor alters the Court of Appeal’s task when it hears appeals from first instance judicial review decisions. Moreover, recognizing a new correctness category in the instant cases would conflict with Vavilov’s goal of simplifying and making more predictable the standard of review framework by providing only limited exceptions to reasonableness review.
Vavilov provided extensive guidance on conducting reasonableness review of administrative decisions. Although the Federal Court in M’s case did not have the benefit of Vavilov, the Federal Court of Appeal did, and it strayed from Vavilov’s methodology of reasonableness review. It grafted onto Vavilov an extra step of conducting a preliminary analysis of the text, context, and purpose of the legislation to understand the lay of the land before examining the administrative decisions. This preliminary step is inconsistent with Vavilov. Vavilov is clear that a reviewing court must start its analysis with the reasons of the administrative decision maker. Starting with its own perception of the merits may lead a court to slip into correctness review.
The administrative decisions under review did not reasonably interpret s. 34(1) (e) of the IRPA by not requiring a nexus with national security or the security of Canada. Vavilov instructed that a reviewing court should conduct reasonableness review mindful of the impact of the decision on the affected individual. According to the principle of responsive justification, where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. In the instant cases, the interpretation of s. 34(1)(e) will affect whether two individuals could be deported from Canada. The IAD’s reasons had to reflect these stakes. However, the IAD’s reasons in M’s case failed to address critical points of statutory context and the broad consequences of its interpretation of s. 34(1)(e) that were raised by M. These omissions were significant, involved a failure of responsive justification and, cumulatively, rendered the IAD’s decision unreasonable. The IAD also failed to interpret and apply s. 34(1)(e) in compliance with Canada’s obligation of non-refoulement under Article 33(1) of the 1951 Convention Relating to the Status of Refugees, contrary to the express direction in s. 3(3) (f) of the IRPA that it must do so. The ID’s decision in D’s case, which simply followed the IAD’s interpretation of s. 34(1) (e) of the IRPA in M’s case, was unreasonable for the same reasons.
Cumulatively, the relevant legal constraints point overwhelmingly to only one reasonable interpretation of s. 34(1)(e) — the provision requires a nexus to national security or the security of Canada. Section 34(1)(e) can be invoked to render a person inadmissible only when their “acts of violence that would or might endanger the lives or safety of persons in Canada” have a nexus with national security or the security of Canada. Because the Minister has not alleged that M or D engaged in acts of violence with a link to national security or the security of Canada, s. 34(1)(e) of the IRPA does not provide a legal basis for the inadmissibility of either person.
Per Côté J.: There is agreement with the majority’s disposition of the appeals, its finding that the IAD’s interpretation of s. 34(1)(e) was unreasonable and its determination that inadmissibility under s. 34(1) (e) of the IRPA requires a nexus between the relevant act of violence and with national security or the security of Canada. However, the IAD’s interpretation of s. 34(1)(e) should be reviewed on a standard of correctness.
Section 74 (d) of the IRPA provides for an exceptional appeal to the Federal Court of Appeal for legal questions certified as serious questions of general importance. This indicates legislative intent for judicial involvement and a desire to subject these particular questions, as distinct from all others arising under the IRPA more broadly, to appellate standards of review. Questions certified under s. 74(d) will, by definition, have implications beyond the immediate parties and raise issues of broad significance within Canada’s immigration and refugee protection scheme.
In Vavilov, the Court held that the categories of correctness review are not closed but that reviewing courts should only derogate from the presumption of reasonableness review where required by a clear indication of legislative intent (legislated standards of review and statutory appeal mechanisms) or the rule of law (constitutional questions, general questions of law of central importance to the legal system as a whole, and questions regarding jurisdictional boundaries between administrative bodies). The presumption of reasonableness review from Vavilov does not apply where the legislature expressly involves the court in the administrative scheme. To say that Vavilov is determinative and that the standard of review for certified questions is reasonableness would contradict the Vavilov framework itself.
To be consistent with the principles and framework set out in Vavilov, a new category of correctness review should be recognized: when appellate courts decide a serious question of general importance certified under s. 74 (d) of the IRPA . For the certified question regime to be given its explicitly legislated scope, appellate courts must be able to answer them correctly. Reasonableness review of certified questions under the IRPA is inconsistent with both Parliament’s intent and the rule of law. The rule of law requires — and Parliament intended for appellate courts to provide — a singular, determinate and final answer to a question certified as a serious question of general importance under the IRPA . Even a robust form of reasonableness review may be insufficient to guard against the risk, and the consequences, of arbitrariness. By definition, certified questions transcend the interests of the parties and raise issues of broad significance and general importance within Canada’s immigration and refugee protection scheme. These are the exact types of questions for which the rule of law demands consistent and definitive answers — and for which the risk of arbitrariness is unacceptable. For serious questions of general importance arising under the IRPA , Parliament did not intend courts to be forced to defer to administrative decisions that may be reasonable, but are wrong in law. The only way s. 74 (d) of the IRPA can be given its explicitly legislated scope is if appellate courts are permitted to substitute their own opinion in respect of these serious questions of general importance. The certified question regime would be incoherent if the standard of review were anything other than correctness.
The IAD’s interpretation of s. 34(1)(e) was unreasonable and inadmissibility under s. 34(1)(e) requires a nexus between the relevant act of violence and with national security or the security of Canada. The IAD’s interpretation would significantly expand the grounds on which foreign nationals or permanent residents may be deported from Canada. It would allow foreign nationals to be returned to countries where they may face persecution, in a manner contrary to Canada’s obligations under the Convention Relating to the Status of Refugees. Parliament did not intend for appellate courts to defer to reasonable but legally incorrect answers to this or other certified questions. It remains the task of administrative decision makers under the IRPA to apply this interpretation of s. 34(1)(e) going forward, including determining which acts of violence may indeed qualify as a threat to national security or the security of Canada.
Cases Cited
By Jamal J.
Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; considered: Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281; referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Northern Regional Health Authority v. Horrocks, 2021 SCC 42; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674; Canada (Immigration and Citizenship) v. Laing, 2021 FCA 194; Canada (Public Safety and Emergency Preparedness) v. XY, 2022 FCA 113, 89 Imm. L.R. (4th) 173; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, 468 D.L.R. (4th) 358; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770; Delios v. Canada (Attorney General), 2015 FCA 117, 100 Admin. L.R. (5th) 301; Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; X (Re), 2017 CanLII 146735; El Werfalli v. Canada (Public Safety and Emergency Preparedness), 2013 FC 612, [2014] 4 F.C.R. 673; Fuentes v. Canada (Minister of Citizenship and Immigration), 2003 FCT 379, [2003] 4 F.C. 249; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704; de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; Prosecutor v. Germain Katanga, ICC-01/04-01/07, 1 October 2013; Zaoui v. Attorney-General (No. 2), [2005] 1 N.Z.L.R. 690; Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17; G. v. G., [2021] UKSC 9, [2022] A.C. 544.
By Côté J.
Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30; considered: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289; Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, 468 D.L.R. (4th) 358; X (Re), 2017 CanLII 146735; referred to: Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706; Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704; Vavilov v. Canada (Citizenship and Immigration), 2017 FCA 132, [2018] 3 F.C.R. 75; Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, [2015] 1 F.C.R. 335; Huruglica v. Canada (Citizenship and Immigration), 2016 FCA 93, [2016] 4 F.C.R. 157; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; Canada (Immigration and Citizenship) v. Laing, 2021 FCA 194; Canada (Public Safety and Emergency Preparedness) v. XY, 2022 FCA 113, 89 Imm. L.R. (4th) 173; Mudrak v. Canada (Minister of Citizenship and Immigration), 2016 FCA 178, 43 Imm. L.R. (4th) 199; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; Moumdjian v. Canada (Security Intelligence Review Committee), [1999] 4 F.C. 624; Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174.
Statutes and Regulations Cited
Citizenship Act , R.S.C. 1985, c. C‑29, s. 10.5(1) .
Criminal Records Act , R.S.C. 1985, c. C-47 .
Immigration Act, R.S.C. 1985, c. I‑2, s. 19(1)(g).
Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 2(1) “foreign national”, 3(2)(b), (3)(f), Part 1, 25(1), Division 4, 33, 34 to 42, 42.1(1), 64(1), 72(1), 74(d), 96, 97, 112, 113(d)(i), (ii), 114(1), 115.
Young Offenders Act , R.S.C. 1985, c. Y-1 .
Youth Criminal Justice Act , S.C. 2002, c. 1 .
Treaties and Other International Instruments
Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, Articles 1, 33, 42.
Protocol Relating to the Status of Refugees, Can. T.S. 1969 No. 29, Article 1.
Authors Cited
Canada. Citizenship and Immigration Canada. Bill C‑11: Clause by Clause Analysis. Ottawa, September 2001.
Daly, Paul. Certified Questions, References and Reasonableness: Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, April 8, 2022 (online: https://www.administrativelawmatters.com/blog/2022/04/08/certified-questions-references-and-reasonableness-canada-citizenship-and-immigration-v-galindo-camayo-2022-fca-50/; archived version: https://scc-csc.ca/cso-dce/2023SCC-CSC21_1_eng.pdf).
Daly, Paul. “Unresolved Issues after Vavilov” (2022), 85 Sask. L. Rev. 89.
Daly, Paul. “Vavilov and the Culture of Justification in Contemporary Administrative Law” (2021), 100 S.C.L.R. (2d) 279.
Heckman, Gerald, and Amar Khoday. “Once More unto the Breach: Confronting the Standard of Review (Again) and the Imperative of Correctness Review when Interpreting the Scope of Refugee Protection” (2019), 42 Dal. L.J. 49.
Lambert, Hélène. “Customary Refugee Law”, in Cathryn Costello, Michelle Foster and Jane McAdam, eds., The Oxford Handbook of International Refugee Law. New York: Oxford University Press, 2021, 240.
Lauterpacht, Sir Elihu, and Daniel Bethlehem. “The scope and content of the principle of non‑refoulement: Opinion”, in Erika Feller, Volker Türk and Frances Nicholson, eds., Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection. New York: Cambridge University Press, 2003, 87.
Liew, Jamie Chai Yun. “The Good, the Bad, and the Ugly: A Preliminary Assessment of Whether the Vavilov Framework Adequately Addresses Concerns of Marginalized Communities in the Immigration Law Context” (2020), 98 Can. Bar Rev. 398.
Macklin, Audrey. “Seven Out of Nine Legal Experts Agree: Expertise No Longer Matters (in the Same Way) After Vavilov!” (2021), 100 S.C.L.R. (2d) 249.
Mullan, David. “Reasonableness Review Post-Vavilov: An ‘Encomium for Correctness’ or Deference As Usual?” (2021), 23 C.L.E.L.J. 189.
Popescu, Monica. “L’arrêt Vavilov: à la recherche de l’équilibre perdu entre la primauté du droit et la suprématie législative” (2021), 62 C. de D. 567.
United Nations High Commissioner for Refugees. Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. Geneva, 2007.
APPEAL from a judgment of the Federal Court of Appeal (Stratas, Rennie and Mactavish JJ.A.), 2021 FCA 156, [2022] 1 F.C.R. 3, 84 Imm. L.R. (4th) 49, [2021] F.C.J. No. 811 (QL), 2021 CarswellNat 2818 (WL), setting aside a decision of Grammond J., 2019 FC 1251, [2020] 2 F.C.R. 3, 71 Imm. L.R. (4th) 292, [2019] F.C.J. No. 1127 (QL), 2019 CarswellNat 5134 (WL), allowing an application for judicial review of a decision of the Immigration and Refugee Board of Canada (Immigration Appeal Division), [2019] I.A.D.D. No. 329 (QL), 2019 CarswellNat 2865 (WL). Appeal allowed.
APPEAL from a judgment of the Federal Court of Appeal (Stratas, Rennie and Mactavish JJ.A.), 2021 FCA 156, [2022] 1 F.C.R. 3, 84 Imm. L.R. (4th) 49, [2021] F.C.J. No. 811 (QL), 2021 CarswellNat 2818 (WL), setting aside a decision of Barnes J., 2020 FC 59, [2020] F.C.J. No. 40 (QL), 2020 CarswellNat 63 (WL), allowing an application for judicial review of a decision of the Immigration and Refugee Board of Canada (Immigration Division), [2019] I.D.D. No. 23 (QL), 2019 CarswellNat 9922 (WL). Appeal allowed.
Erica J. Olmstead, Molly Joeck and Aidan C. Campbell, for the appellant Earl Mason.
Robert J. Kincaid, for the appellant Seifeslam Dleiow.
Michael H. Morris and BJ Wray, for the respondent.
Judie Im and Susan Keenan, for the intervener the Attorney General of Ontario.
Johnna Van Parys and Laura Mazenc, for the intervener the Attorney General of Saskatchewan.
Prasanna Balasundaram, Barbara Jackman and Asiya Hirji, for the intervener the Canadian Council for Refugees.
Jacqueline Swaisland, Paul Daly, Anthony Navaneelan and Jonathan Porter, for the intervener the Canadian Association of Refugee Lawyers.
Brandon Barnes Trickett and David Thiessen, for the intervener the Social Planning Council of Winnipeg.
Naseem Mithoowani and Hanaa Al Sharief, for the intervener the Canadian Muslim Lawyers Association.
Aviva Basman and Alyssa Manning, for the intervener the United Nations High Commissioner for Refugees.
Dahlia Shuhaibar, for the intervener Amnesty International Canadian Section (English Speaking).
Subodh Bharati, Amy Mayor and Scarlet Smith, for the intervener the Community & Legal Aid Services Program.
Guillaume Cliche-Rivard, for the intervener Association québécoise des avocats et avocates en droit de l’immigration.
Kevin Westell and Frances Mahon, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. was delivered by
Jamal J. —
I. Overview
[1] These appeals require the Court to apply the framework for judicial review developed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, to two administrative decisions involving a question of statutory interpretation in the immigration context.
[2] The statutory provision at issue, s. 34(1) (e) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), provides that permanent residents and foreign nationals are inadmissible to Canada on “security grounds” for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. The key point of disagreement among the administrative decision makers and courts below is whether the “acts of violence” listed as “security grounds” in s. 34(1)(e) require a link to national security or the security of Canada, or whether s. 34(1)(e) applies to acts of violence more broadly even without such a link.
[3] Both administrative decisions under review interpreted s. 34(1)(e) as not requiring the acts of violence to have a link to national security or the security of Canada. In the first administrative decision, the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board of Canada (“IRB”) ruled that Mr. Earl Mason, a foreign national, could be found inadmissible under s. 34(1)(e) if his alleged violent conduct were established. Mr. Mason allegedly shot a gun and wounded two people when he was assaulted during a fight at a bar. Charges against him were stayed and he was not convicted of any criminal offence. In the second administrative decision, the Immigration Division (“ID”) of the IRB followed the IAD’s interpretation of s. 34(1)(e) in Mr. Mason’s case and ruled that Mr. Seifeslam Dleiow, a foreign national, was inadmissible under s. 34(1)(e) for acts of violence against two intimate partners. It was not alleged that either Mr. Mason or Mr. Dleiow engaged in acts of violence with a link to national security or the security of Canada.
[4] The Federal Court allowed Mr. Mason and Mr. Dleiow’s applications for judicial review. In Mr. Mason’s case, in reasons released before this Court released Vavilov, the Federal Court ruled that it was unreasonable to interpret s. 34(1)(e) as applying to acts of violence without a nexus to national security. The Federal Court followed that approach in Mr. Dleiow’s case. Thus, neither Mr. Mason nor Mr. Dleiow was inadmissible. In both cases, the Federal Court also certified serious questions of general importance, so that the Federal Court of Appeal could consider whether it was reasonable to interpret s. 34(1)(e) as not requiring proof of conduct having a nexus to national security or the security of Canada.
[5] The Federal Court of Appeal allowed both appeals. In reasons addressing both cases — released after this Court released Vavilov — the Court of Appeal ruled that the IAD and ID had reasonably interpreted s. 34(1) (e) of the IRPA as not requiring a nexus to national security or the security of Canada.
[6] Mr. Mason and Mr. Dleiow now appeal to this Court. Two issues arise. First, what standard of review should the reviewing courts have applied when reviewing the decisions of the IAD in Mr. Mason’s case and the ID in Mr. Dleiow’s case? Second, how should that standard of review have been applied in the circumstances?
[7] In Vavilov, this Court revised the framework for determining the standard of review. The Court established a presumption that the standard of review of the merits of an administrative decision is reasonableness, subject to limited exceptions based on legislative intent or when required by the rule of law (paras. 10 and 17). The revised framework seeks to maintain the rule of law, while respecting a legislature’s intent to entrust certain decisions to administrative decision makers rather than courts (paras. 2 and 14). It also aims to bring simplicity, coherence, and predictability to the law on the standard of review and to eliminate the unwieldy exercise of determining the standard of review based on contextual factors, as had been required by this Court’s jurisprudence following Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Vavilov, at paras. 7 and 10).
[8] Vavilov also explained how a court should conduct reasonableness review. This Court stressed that reasonableness review and correctness review are methodologically distinct (para. 12). Reasonableness review starts from a posture of judicial restraint and focusses on “the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place” (paras. 15 and 24). When an administrative decision maker is required to provide reasons for its decision, reasonableness review requires a “sensitive and respectful, but robust” evaluation of the reasons provided (para. 12). A reviewing court must take a “reasons first” approach that evaluates the administrative decision maker’s justification for its decision (para. 84). An administrative decision will be reasonable if it “is based on an internally coherent and rational chain of analysis and . . . is justified in relation to the facts and law that constrain the decision maker” (para. 85). This Court also affirmed “the need to develop and strengthen a culture of justification in administrative decision making” (para. 2).
[9] Applying the Vavilov framework to these appeals, I conclude that the standard of review of the administrative decisions at issue is reasonableness. No established exception to the presumption of reasonableness review applies, nor should any new exception be created on the basis that the appeals involved a serious question of general importance certified for appeal to the Federal Court of Appeal under s. 74 (d) of the IRPA . The certified question regime is a statutory mechanism for the Federal Court to provide for an appeal from a judicial review decision in certain circumstances.
[10] Both administrative decisions were unreasonable. In particular, the IAD in Mr. Mason’s case, whose interpretation of s. 34(1)(e) was followed in Mr. Dleiow’s case, failed to consider three significant legal constraints bearing on its decision. First, the IAD failed to address critical points of statutory context that Mr. Mason had raised in his submissions to the IAD. Second, the IAD failed to address the potentially broad consequences of its interpretation, which again Mr. Mason had raised in his submissions. These omissions involved significant failures of “responsive justification” that would cause a reviewing court to lose confidence in the IAD’s decision. Third, the IAD failed to interpret and apply s. 34(1)(e) in compliance with international human rights instruments to which Canada is a signatory — specifically, the obligation of non-refoulement under Article 33(1) of the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”) — contrary to the express direction in s. 3(3) (f) of the IRPA that it must do so. The IAD’s failure to consider these three legal constraints rendered its decision unreasonable.
[11] In these cases, the relevant legal constraints point overwhelmingly to a single reasonable interpretation of s. 34(1)(e) — a person can be found inadmissible under s. 34(1)(e) only if they engage in acts of violence with a nexus to national security or the security of Canada.
[12] As a result, I would allow both appeals, set aside the judgments of the Federal Court of Appeal, allow the applications for judicial review, and quash the administrative decisions.
II. Facts
A. Mr. Earl Mason
[13] Mr. Earl Mason is a citizen of Saint Lucia and a “foreign national” in Canada — that is, he is neither a Canadian citizen nor a permanent resident (IRPA , s. 2(1) , “foreign national”). He is married to a Canadian citizen and has two daughters in Canada. He entered Canada in June 2010 and has remained here as a foreign national. He claimed refugee protection when he arrived in Canada, but he later withdrew this claim when he applied for permanent residence with his wife’s sponsorship.
[14] The following allegations were made against Mr. Mason in the inadmissibility proceedings under review. In May 2012, Mr. Mason had an argument with a man at a concert in a bar in Surrey, British Columbia. The man broke a beer bottle over Mr. Mason’s head, and Mr. Mason responded by drawing a gun from his waistband and firing it eight times, wounding his assailant and another man. In May 2014, Mr. Mason was charged with two counts of attempted murder and two counts of discharging a firearm with intent to wound or disfigure. The shooting was not linked to terrorism or organized crime. In 2015, the charges were stayed because of delay. As a result, Mr. Mason was not found guilty of any criminal offence.
[15] The IRPA sets out several grounds on which a permanent resident or foreign national may be found inadmissible, and thus may be denied entry to or be required to leave Canada (ss. 34 to 42). In April 2016, a Canada Border Services Agency (“CBSA”) officer prepared a report alleging that Mr. Mason was inadmissible on “security grounds” under s. 34(1) (e) of the IRPA , which provides that a permanent resident or foreign national is inadmissible for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. Section 34(1) states:
Security
34 (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;
(b) engaging in or instigating the subversion by force of any government;
(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;
(c) engaging in terr