SCC applies Vavilov standard of review framework; overturns FCA on immigration inadmissibility

By Cristin Schmitz

Last Updated: Thursday, September 28, 2023 @ 1:55 PM

Law360 Canada (September 27, 2023, 5:15 PM EDT) -- Applying the Vavilov standard of review framework, the Supreme Court of Canada has ruled 8-0 that non-citizens can be found inadmissible to Canada and deported under the s. 34(1)(e) “security grounds” provision of the Immigration and Refugee Protection Act (IRPA) only if the non-citizen’s alleged violent conduct had a nexus to national security or the security of Canada.

On Sept. 27 Supreme Court of Canada Justice Mahmud Jamal set aside the Federal Court of Appeal’s judgment below which had upheld as “reasonable” decisions by a first-line adjudicator in the Immigration Division (ID) and by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) which broadly interpreted the IRPA’s  s. 34(1)(e) to authorize the deportation of foreign nationals and permanent residents under that “security grounds” provision, even where the relevant violent act(s) had no nexus to national security or the security of Canada: Mason v. Canada, 2023 SCC 21.  

The IRPA’s 47-year-old provision whose meaning was hotly disputed states 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.”

Justice Mahmud Jamal

Justice Mahmud Jamal

Justice Jamal explained that “the key point of disagreement” among the administrative decision-makers and the Federal Court and Federal Court of Appeal below was 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.”

Justice Jamal held for the court, “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.”

In applying the framework for standard of review set out in the leading case of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, to address what standard the reviewing courts below should have applied when reviewing the decision of the IAD in Earl Mason’s case and the ID’s decision in Seifeslam Dleiow’s case, Justice Jamal ruled that “the standard of review of the administrative decisions at issue is reasonableness.”

“No established exception to the presumption of reasonableness review applies,” he reasoned, “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.”

In holding that a foreign individual’s violent act(s) must have a nexus to national security to justify inadmissibility on security grounds — as a number of the 11 interveners in the case had argued was the accepted interpretation for decades — the Supreme Court of Canada allowed applications for judicial review by Mason and Dleiow. The top court quashed the IAD’s decision in Mason’s case and the ID adjudicator’s decision and deportation order below with respect to Dleiow.

Mason allegedly shot a gun and wounded two people when he was assaulted during a fight at a bar, but his charges were thrown out for undue delay, and he was not convicted of any criminal offence. Dleiow was alleged to have engaged in acts of violence against two intimate partners and others. Some of the ensuing criminal charges were stayed and Dleiow was conditionally discharged after pleading guilty to three charges. It was not alleged that either Mason or Dleiow engaged in acts of violence that had any link to national security or the security of Canada.

In Mason’s case, the ID concluded that a “security ground” under s. 34(1)e 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. Since Mason’s alleged conduct lacked any element that would elevate it to security grounds, s. 34(1)(e) could not apply. The IAD allowed the immigration minister’s appeal, concluding that inadmissibility under s. 34(1)(e) relates to security in a broader sense, i.e. to ensure that individual Canadians are secure from acts of violence that would or might endanger their lives or safety. In Dleiow’s case, the ID adjudicator followed the IAD’s interpretation of s. 34(1)(e) in Mason’s case, concluding that Dleiow was inadmissible, and ordering his deportation.

Federal Court Justice Sébastien Grammond allowed applications for judicial review on the basis that it was unreasonable to interpret s. 34(1)(e) as applying to acts of violence without a nexus to national security. He certified as a “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 Mason’s case and the ID in Dleiow’s case had reasonably interpreted s. 34(1)(e) as not requiring a nexus to national security or the security of Canada.

Justice Jamal noted that “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 cases at bar, “the interpretation of s. 34(1)(e) will affect whether two individuals could be deported from Canada,” Justice Jamal observed. “The IAD’s reasons had to reflect these stakes. However, the IAD’s reasons in Mason’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 Mason. These omissions were significant, involved a failure of responsive justification and, cumulatively, rendered the IAD’s decision unreasonable.

The judge explained that 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 Dleiow’s case, which simply followed the IAD’s interpretation of s. 34(1)(e) of the IRPA in Mason’s case, was unreasonable for the same reasons.”

Commenting on the Federal Court of Appeal’s unanimous judgment below, written by Justice David Stratas, Justice Jamal said the Appeal Court “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.”

Justice Suzanne Côté

Justice Suzanne Côté

Justice Suzanne Côté diverged from the majority on the question of the applicable standard of review, arguing for a standard of correctness. While agreeing that inadmissibility under IRPA’s s. 34(1)(e) requires a nexus between the relevant act of violence and national security or the security of Canada, the judge argued that reviewing the IAD’s interpretation for correctness was consistent with Vavilov’s teaching that reviewing courts should derogate from the presumption of reasonableness review where required by a clear indication of legislative intent or “the rule of law.”

Justice Côté maintained that the top court should recognize a new category of correctness review in cases where appellate courts are deciding a “serious question of general importance” certified under s. 74(d) of the IRPA.

Noting as well the high stakes, given that the IAD’s interpretation of s. 34(1)(e) would significantly expand the grounds on which foreign nationals or permanent residents could be deported from Canada, including to countries where they could face persecution, Justice Côté reasoned that “the rule of law requires — and Parliament intended for appellate courts to provide — definitive, correct answers to legal questions certified under s. 74(d) of the IRPA. By definition, these are questions that transcend the interests of the parties and raise issues of broad significance within Canada’s immigration and refugee protection scheme.”

Molly Joeck of Vancouver’s Edelmann & Company, who with Erica Olmstead and Aidan Campbell represents Mason, called the ruling “very good news.”

Winning counsel, (l-r) Aidan Campbell, Erica Olmstead, Molly Joeck of Edelmann & Company

Aidan Campbell, Erica Olmstead, Molly Joeck of Edelmann & Company

“The decision strongly affirms that conduct, absent a criminal conviction, should not necessarily lead to inadmissibility under s. 34(1)(e), which is one of the most serious types of inadmissibility provided for under the IRPA,” she said.

Joeck told Law360 Canada the ruling will create more certainty for non-citizens involved in the criminal justice system. “The IAD’s interpretation of s. 34(1)(e), on the face of it, opened up the possibility of very serious inadmissibility for stayed charges or other non-conviction resolutions to criminal charges, which made it difficult for criminal defence counsel to advise and assist non-citizens facing criminal charges,” she explained. “The Supreme Court made clear that common criminal conduct, absent a national security nexus, is not a basis for inadmissibility under s. 34(1)(e).”

She added that “we are happy with the court’s emphasis on the importance of responsive justification per Vavilov. The court made clear that given the stakes of an admissibility proceeding — i.e. deportation and, in the case of s. 34(1)(e), a lifetime ban from return to Canada, absent special relief — it is incumbent upon the tribunal to provide reasons that engage with the arguments and evidence advanced by the person concerned, and allow reviewing courts to understand how the decision-maker arrived at their decision. The IAD in this case did not engage with various of the arguments advanced by Mr. Mason’s counsel, and the Supreme Court emphasized that that approach is not coherent with Vavilov.”

Joeck also highlighted Justice Jamal’s affirmation of the importance of international law, and specifically, the Refugee Convention, for purposes of interpreting the IRPA, including the admissibility regime. His international law analysis could also affect the interpretation of other admissibility provisions under ss. 34 and 37 of that Act, she suggested.

“The interpretation of s. 34(1)(e) advanced by the minister of public safety in Mason, and adopted by the IAD, was novel and unprecedented, and stood to potentially render inadmissible a large swath of non-citizens in Canada,” Joeck remarked. “The Supreme Court of Canada’s decision makes clear that when faced with such significant and impactful novel interpretations of the IRPA, the ID and IAD must engage very carefully with the proposed interpretation, bearing in mind international law and the constraints brought to bear by the Convention — regardless of whether that was specifically argued before the tribunal. This is particularly important for self-represented litigants who will often not have the legal training to make complex arguments about international law.”

One of the interveners, the United Nations High Commissioner for Refugees, said in a statement that it “appreciates the court’s acknowledgment that Canada must respect its obligations under international law, including the right of refugees and asylum-seekers not to be returned to a country where they would face persecution.”

“At a time when we are seeing the right to claim asylum challenged globally and increased numbers of people forced to flee their homes, UNHCR, the UN Refugee Agency, welcomes the Supreme Court of Canada’s reaffirmation of protections under the Refugee Convention,” the agency said.

Johnna Van Parys, Attorney General of Saskatchewan

Johnna Van Parys, a senior counsel with the AG of Saskatchewan

Johnna Van Parys, a senior counsel who appeared with Laura Mazenc on behalf of the intervener Attorney General of Saskatchewan, said “Mason is a clear message to lower courts and practitioners that the approach to standard of review and the reasonableness analysis established in Vavilov are here to stay. The Supreme Court did not modify or alter their decision in Vavilov in any way but used Mason as an opportunity to reinforce their expectation that decision-makers will appropriately justify their decisions and that courts will conduct their reasonableness analysis using a reasons-first approach.”

Mason also demonstrates the difficulty litigants will have in convincing courts to establish new categories of correctness review, Van Parys added. “It’s difficult to imagine any new categories emerging after the majority declined to add certified serious questions of general importance to the list.”

She noted that the court “also took the opportunity to state again that the contextual analysis from Dunsmuir — or anything that remotely resembles the old contextual analysis — is well and truly dead.”

Van Parys said the Supreme Court did not clarify how or if the Vavilov standard of review framework applies to internal appeals, i.e. in situations where there is a right of appeal or review from one administrative decision-maker to another (as is the case with the ID and IAD). “There currently isn’t any consistency in how tribunals and courts are approaching the issue,” she remarked. “The court didn’t comment on this in Mason as the issue wasn’t raised by any of the parties involved, but I expect it will make it up to the Supreme Court of Canada at some point.”

Overall, there were no big surprises in the Mason judgment, she said. “The Supreme Court took the opportunity to demonstrate how the Vavilov framework works in practice. We’ll have to wait for another case to address what I view as one of the biggest questions remaining in administrative law post-Vavilov: how the Vavilov framework applies to internal statutory appeals.”

Dleiow’s counsel, Robert Kincaid of Vancouver’s Robert J. Kincaid Law Corp, said the ruling “returns us to the practice that has existed for decades.”

Previously the minister of immigration was not taking ordinary criminal conduct in Canada to immigration tribunals on security grounds, he said. “That all changed due to bad facts” which initially made bad law, Kincaid said, referring to the stayed criminal charge of attempted murder against Mason and the situation in his client’s case. The Supreme Court’s ruling “is another example that clarifies the use of Vavilov by providing a concrete example of its application,” he said. He suggested the ruling confirms Parliament’s intention that convictions for criminal conduct are generally needed to justify deportation and one can’t do an “end-around by using security provisions to go after ordinary criminal conduct.”

Jacqueline Swaisland, Landings LLP

Jacqueline Swaisland, Landings LLP

Jacqueline Swaisland of Toronto’s Landings LLP, co-counsel with Anthony Navaneelan, Paul Daly and Jonathan Porter for the intervener Canadian Association of Refugee Lawyers (CARL), told Law360 Canada the court’s decision “substantially narrows the scope of s. 34(1)(e) and provides clarity about who can be found inadmissible to Canada pursuant to this section.”

Swaisland said takeaways include: the standard of review for most immigration and refugee protection decisions is reasonableness; certification of general importance by the Federal Court does not change the standard of review; and the top court has made its clearest statement that the IRPA must be applied consistently with the Refugee Convention — even when the individuals before the tribunal are not themselves refugees.

Swaisland advised that the decision should be read by anyone practising administrative law “as the court’s latest pronouncements on standard of review and what constitutes reasonableness review. For immigration and refugee lawyers, the real takeaways are how s. 34(1)(e) should be interpreted and how important it is to use the Refugee Convention when arguing cases about how the IRPA should be properly interpreted.”

She remarked that the Federal Court of Appeal’s decision below left open the possibility for multiple conflicting interpretations of s. 34(1)(e) “which would have resulted in a lot of confusion to all parties in the system.”

“The Canada Border Services Agency wouldn’t have had clear directions on who they should report as inadmissible; decision-makers wouldn’t have had clear guidance on how the provision should be applied in the cases before them; criminal lawyers would have had a difficult time advising their clients on the immigration consequences of a plea deal/conviction; and immigration counsel couldn’t provide concrete advice to the persons captured by the provisions about the repercussions of their actions,” Swaisland said. “Therefore, if the Supreme Court hadn’t made the decision it did, it would have left a lot of uncertainty that could have had very far-reaching consequences.”

Justice Côté’s dissent on the standard of review, which reflected arguments from CARL and some other interveners, “provided a much more compelling analysis of why the standard of review ought to be correctness when dealing with a certified question, than the majority did for its position for why it should be reasonableness,” in Swaisland’s view.

The immigration department referred Law360 Canada’s questions to the Canada Border Services Agency, which had not provided a response at press time.

Editor’s note: A previous version of this story misidentified one of the successful appellants as George Mason. He is Earl Mason. Law360 Canada apologizes for the error.

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