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| Sara Blake |
The circumstance concerned judicial review of two deportation orders made by the Immigration Appeal Division under the Immigration and Refugee Protection Act. Both men obtained leave to seek judicial review in the Federal Court. That Act provides that a decision made by a judge of the Federal Court on judicial review may not be appealed to the Federal Court of Appeal unless the judge, in rendering judgment, certifies “a serious question of general importance”. In separate decisions, each judge set aside the deportation order but authorized appeal by certifying the question of interpretation of the provision under which the applicants were declared inadmissible to Canada.
Does this certification elevate the standard of review to correctness? The majority of the Supreme Court of Canada say, No. Only Justice Suzanne Côté would have applied the standard of correctness: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21.
The question of statutory interpretation concerned s. 34(1)(e) of the Immigration and Refugee Protection Act, which provides: “A permanent resident or a foreign national is inadmissible on security grounds for … engaging in acts of violence that would or might endanger the lives or safety of persons in Canada … .”
The interpretation issue was whether this provision requires a connection between the acts of violence and national security. Both men had been charged with criminal offences that endangered the lives or safety of others, but which had nothing to do with national security. One man wounded two men with a gun in a bar brawl. Charges against him were stayed for delay. The other pleaded guilty to domestic violence offences and received a conditional discharge.
A separate provision provides for deportation on grounds of serious criminality. Section 36 renders inadmissible a permanent resident or a foreign national on grounds of serious criminality if the person has been convicted. This provision did not apply as neither man was convicted.
The men were ordered deported even though their acts of violence had nothing to do with national security. The majority of the Supreme Court of Canada ruled that this was an unreasonable interpretation of section 34 and set aside the deportation orders. The dissent agreed that the deportation orders should be set aside but would have reached that conclusion by application of a correctness standard of review.
The majority confirmed the presumptive standard on judicial review to be reasonableness. They reviewed whether any of the established exceptions requiring correctness review apply. On concluding that none apply, they ruled that a new exception is not warranted.
One established exception applies if the statute prescribes review on a correctness standard. The majority ruled that this exception does not apply because the provisions for judicial review by the Federal Court do not prescribe a standard of review to be applied to decisions of the Immigration Appeal Division. The Federal Court applies the presumptive standard of reasonableness.
Another established exception concerns general questions of law of central importance to the legal system as a whole. The majority ruled that this exception does not apply because the interpretation of s. 34, though important, 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.
The majority ruled that a new exception is not warranted by the restriction of the statutory right of appeal to cases in which the judge who decided the judicial review has certified a serious question of general importance. The certification grants a right of appeal but does not establish a standard of review on appeal that would be different from that applied by the judge.
The majority noted that Vavilov, in which the presumptive standard of reasonableness was confirmed, was a judicial review appealed on a certified question, albeit under a different statute and from a different statutory decision maker (Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65).
In applying a reasonableness standard of review to the question of statutory interpretation, the majority reminded lower courts to take a “reasons first” approach; that is, to start by reviewing the decision-maker’s reasons. The Federal Court of Appeal failed to do this — it did its own statutory interpretation before reviewing the decision.
The majority confirmed that the decision-maker’s justification of its statutory interpretation must be based on analysis of the statutory text, context and purposes.
The majority reviewed the decision-maker’s statutory analysis and found that it failed to address statutory provisions and an international convention that the men had argued should influence the interpretation. The court found these errors to be significant.
In considering the remedy, the court ruled that there would be no point referring the cases back to the Immigration Appeal Division for reconsideration because there is only one reasonable interpretation of s. 34 — that there must be a link between the violence and national security. The court stressed that the possibility of a single reasonable interpretation is not a starting point of reasonableness review, as this would be contrary to a “reasons first” approach. Rather, it is a conclusion that a reviewing court may draw as a result of a proper reasonableness review, as part of the court’s consideration of the appropriate remedy.
Justice Côté, in dissent, would have applied a correctness standard to an appeal on a certified question. She cited pre-Vavilov decisions that had applied this standard of review in immigration cases and ruled that the statutory language — a serious question of general importance — elevated the standard of review to correctness. However, she agreed with the majority’s conclusions on statutory interpretation.
I agree with the majority. I note that the statutory right of appeal is granted only if the judge, after deciding the judicial review on a reasonableness standard, certifies a serious question of general importance. In my view, this effectively operates as a statutory requirement to obtain leave to appeal from the judge who made the decision, rather than the more typical statutory requirement to apply to the Court of Appeal for leave. This statutory test is similar to that applied by appellate courts — an applicant for leave to appeal from a decision on judicial review is required to raise a question law or a question of public importance.
It is important to note that the judicial review decision is rarely the first decision – it is a review of a decision made by a statutory decision-maker. Before the case proceeds to the Court of Appeal, the parties have had at least two opportunities to argue their case – three in this case, as the Immigration Appeal Division heard appeals from the Immigration Division. In addition, the Act requires that leave to apply for judicial review be obtained. So, a higher bar to appeal to the Court of Appeal makes sense.
And I agree with the majority that the Court of Appeal ought not to apply a standard of review different from that applied by the judge of the court below. That would invite the appellate court to ignore the reasons of both the judge and the tribunal. It would be contrary to the “reasons first” approach to judicial review.
I have observed over many years that the choice of standard of judicial review rarely affects the result on the merits. This case presents another example in that both the majority and dissent arrived at the same conclusion on the merits despite the application of different standards of review.
As my focus is on the standard of review analysis, I leave it to others to comment on the court’s statutory analysis of immigration law.
Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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