Standard of Review and Certified Questions under the Immigration and Refugee Protection Act

Next week the Supreme Court of Canada will hear the appeal in the Mason case. The principal issue is the interpretation of s. 34(1)(e) of the Immigration and Refugee Protection Act. Under s. 34, a permanent resident or foreign national is inadmissible to Canada “on security grounds” for, amongst other things, “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada” (s. 34(1)(e)).

There are two appellants, Mason and Dleiow. Mason discharged a firearm at a concert, injuring two people. He was charged with attempted murder but the proceedings were stayed. Dleiow had pleaded guilty to being unlawfully in his former partner’s home with intent to commit an indictable offence, causing damage to a door and having uttered threats. It was also suggested that he had assaulted another woman but she withdrew her allegations at Dleiow’s inadmissibility hearing.

The Minister of Citizenship and Immigration sought to have both M and D declared inadmissible under s. 34(1)(e). M and D took the position, in essence, that inadmissibility under s. 34 only arises where there is a national security nexus, i.e. that its purpose is to exclude from Canada those who are a threat to national security. Both the Immigration Division and Immigration Appeal Division of the Immigration and Refugee Board agreed with the Minister: no national security nexus was required.

On judicial review, Grammond J found the decision in Mason to be unreasonable: 2019 FC 1251. Barnes J followed Grammond J’s analysis in Dleiow: 2020 FC 59. The matter went on appeal via a certified question: Is it reasonable to interpret section 34(1)(e) of the Immigration and Refugee Protection Act, SC 2001, c 27, 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 appeal: 2021 FCA 156. Applying reasonableness review, Stratas JA found that the Immigration Appeal Division’s ‘no-national-security-nexus’ interpretation was reasonable:

To the extent that the Immigration Appeal Division failed to mention some elements in its analysis of text, context and purpose, this was not a fundamental gap. In these circumstances and consistent with paragraph 41 above, I conclude that the Immigration Appeal Division implicitly found that the preponderance of elements supported the Minister’s interpretation. In other words, although one can quibble that certain elements of text, context and purpose were not mentioned in the reasons, I am confident from the quality of the Immigration Appeal Division’s overall reasoning that it considered them to be outweighed by other elements (at para. 59).

Most of the argument in the case (you can read the written submissions here) is directed to the reasonableness of the IAD’s interpretation.

With co-counsel Jackie Swaisland, Anthony Navanaleenan and Jonathan Porter, I am appearing for the intervenor Canadian Association of Refugee Lawyers. Our position is that the standard of correctness should apply to questions certified for the Federal Court of Appeal under the Immigration and Refugee Protection Act.

As we explain in our overview:

This case requires this Court to determine the standard of review that applies to appeals involving a “serious question of general importance” certified under s. 74(d) of the Immigration and Refugee Protection Act (“IRPA”).1 The Canadian Association of Refugee Lawyers/Association canadienne des avocats et avocates en droit des réfugiés (“CARL”) takes the position that the correctness standard should apply. This Court reached this conclusion when it directly considered the certified question regime in Pushpanathan. Moreover, in cases involving certified questions under the IRPA, this Court has generally either explicitly applied correctness review or conducted the functional equivalent of correctness review.

Correctness review of certified questions is consistent with the principles outlined in Vavilov. In this unique and clearly defined context, an analysis of the text, context and purpose of s. 74(d) demonstrates that only the correctness standard can give “effect to the legislature’s institutional design choices.” As such, the contrary approach to certified questions taken by this Court in Agraira and Kanthasamy should not be followed. These outliers have been the subject of significant judicial and academic commentary which criticize these decisions as under-reasoned departures from this Court’s previous jurisprudence and as being inconsistent with the statutory scheme. In contrast, correctness review vindicates the true intent of Parliament in adopting the certified question regime in the IRPA as it permits appellate courts to provide authoritative answers to questions of general importance as contemplated by the statute.

Read the whole thing here, and do tune in for the hearing next Tuesday.

This content has been updated on November 22, 2022 at 22:04.