The Supreme Court and Questions of Law in Immigration and Refugee Law Decision-making (Gerald Heckman)

Gerald Heckman is an Associate Professor at the University of Manitoba Faculty of Law (with thanks to Amar Khoday for discussion)

What standard of review should apply to questions of law that arise in decision-making under the Immigration and Refugee Protection Act[1]? In the decade following Dunsmuir v New Brunswick,[2] the Supreme Court decided six appeals that squarely raised this question. Ezokola v Canada (Citizenship and Immigration)[3] and Febles v Canada (Citizenship and Immigration)[4] concerned the interpretation by the Immigration and Refugee Board’s Refugee Protection Division (RPD) of Articles 1F(a) and 1F(b) of the 1951 Convention Relating to the Status of Refugees,[5] incorporated through s. 98 of the IRPA. B010 v Canada (Citizenship and Immigration)[6] and Tran v Canada (Public Safety and Emergency Preparedness)[7] involved, respectively, the interpretation by the IRB’s Immigration Division (ID) and by a delegate to the Minister of Public Safety and Emergency Preparedness of provisions of the IRPA that define the grounds on which permanent residents or foreign nationals may be found inadmissible to Canada. Agraira v Canada (Public Safety and Emergency Preparedness)[8] concerned the decision of the Minister of Public Safety and Emergency Preparedness to refuse to except a non-citizen from a finding of inadmissibility on security grounds. Kanthasamy v Canada (Citizenship and Immigration)[9] dealt with the decision of an immigration officer refusing to grant a non-citizen a humanitarian and compassionate exemption from the statutory requirement to seek a visa from outside Canada. How has the Supreme Court fared in bringing to bear in the immigration and refugee law context its “more coherent and workable” framework to the judicial review of administrative decisions? In Ezokola and Febles, the Court failed to even mention the appropriate standard of review. In B010 and Tran, the Court declined to determine the standard of review, finding that the impugned decision could not stand under either a reasonableness or correctness standard. In Agraira and Kanthasamy, the Court determined that a reasonableness standard applied. In all six cases, the Court effectively applied an intrusive correctness standard of review, arriving at its view of the appropriate interpretation of the treaty or statute through its own analyses.

To put the Court’s current standard of review jurisprudence in immigration and refugee law in context, let’s travel back in time to the Court’s judgment in Pushpanathan v Canada (Minister of Employment and Immigration), decided a decade before Dunsmuir.[10] The definitive restatement of the Court’s pre-Dunsmuir pragmatic and functional approach to substantive review, Pushpanathan involved the review of an IRB decision on the scope of Article 1F(c) of the Refugee Convention. Article 1F(c) excludes from refugee protection persons with respect to whom there are serious reasons for considering that they have been guilty of “acts contrary to the purposes and principles of the United Nations”. The Court determined that it should review the decision on a correctness standard. The matter had come to the Federal Court of Appeal because the applications judge had certified, under s. 83(1) of the Immigration Act,[11] that the scope of the exclusion clause was “a serious question of general importance” deserving of an appeal. Writing the majority judgment, Justice Bastarache held that the general importance of the question – its applicability to numerous future cases – warranted correctness review. In his view, it was not possible that “the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of ‘general importance’, but then required that despite the ‘general importance’ of the question, the Court accept decisions of the Board which are wrong in law…”[12] Most importantly, the scope of the exclusion clause and the definition of “refugee” were at the core of the human rights purpose underlying the Refugee Convention: the international community’s commitment to the assurance of basic human rights without discrimination.[13] It was unthinkable to repose the “broad definition of a basic human rights guarantee”, a question easily separable from the facts of the case and of wide precedential value, exclusively in the hands of a board whose expertise lay mainly in assessing the nature of the risk of persecution faced by refugee claimants if returned to their country of origin.[14] Conducting a correctness review of the IRB’s decision, the majority applied the principles of treaty interpretation from the Vienna Convention on the Law of Treaties[15] to determine the purpose of the Refugee Convention and of Article 1F(c) within it.

Rebutting the Dunsmuir presumption of reasonableness review: general questions of law of central importance to the legal system and outside the adjudicator’s expertise

Fast-forward fifteen years. Applying Dunsmuir in Ezokola and Febles, the Federal Court of Appeal determined that the appropriate standard of review for the RPD’s interpretation of the scope of Article 1F(a) and (b) of the Refugee Convention was correctness.[16] Writing the majority judgment, Justice Evans noted that while Article 1F(b) was incorporated into s. 98 of the IRPA, the presumption of reasonableness review that applies to a tribunal’s interpretation of its home statute was rebutted. Article 1F(b) was “a provision of an international Convention that should be interpreted as uniformly as possible” and correctness review was “more likely than reasonableness review to achieve this goal.”[17] In concurring reasons, Justice Stratas sounded a note of caution with regards to this reasoning, observing that “the interpretation of provisions in international conventions” was not yet one of the Dunsmuir categories of questions requiring correctness review, nor should it be:

International conventions address many subjects, some quite technical and narrow. Some of those subjects can benefit from interpretations and applications by tribunals with specialized understandings, policy appreciation, and expertise… [O]n occasion, reasonableness review, not correctness review, may be warranted.[18]

Justice Bastarache had also noted this in Pushpanathan, citing National Corn Growers Assn. v Canada (Canadian Import Tribunal)[19] as an example of the Court applying patent unreasonableness review to the interpretation of a treaty provision because the regulatory and economic nature of the determination “counselled deference notwithstanding the generality of its application”.[20] Correctness review in Pushpanathan was not justified simply because the IRB was interpreting a treaty provision but because that provision was central to the definition of refugee, a concept core to the international community’s commitment to assuring basic human rights without discrimination, and because the IRB lacked expertise relative to the reviewing court in interpreting such a provision.

Could correctness review be justified solely by the importance of the legal principles involved in interpreting the exclusion clause, and particularly their connection to basic human rights? Analogous arguments have been raised to defend correctness review of human rights tribunals’ interpretation of the anti-discrimination principles expressed in human rights legislation. In Canada (Attorney General) v Mossop,[21] the Supreme Court described a human rights tribunal’s interpretation of “family status”, a prohibited ground of discrimination under the Canadian Human Rights Act, as “a general question of law” with “direct influence on society at large in relation to basic social values” and deserving of correctness review. In Canada (Canadian Human Rights Commission) v Canada (Attorney General),[22]  the Court considered whether some of the questions decided by human rights tribunals might be characterized as general questions of law that are both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise. Such questions are reviewable on a correctness standard to “safeguard a basic consistency in the fundamental legal order of our country”.[23] It noted:

There is no doubt that the human rights tribunals are often called upon to address issues of very broad import. But, the same questions may arise before other adjudicative bodies, particularly the courts. In respect of some of these questions, the application of the Dunsmuir standard of review analysis could well lead to the application of the standard of correctness. But, not all questions of general law entrusted to the Tribunal rise to the level of issues of central importance to the legal system or fall outside the adjudicator’s specialized area of expertise. Proper distinctions ought to be drawn…[24]

In Mouvement laïque québécois v Saguenay (City),[25] the Court held that the Québec Human Rights Tribunal’s views on the scope of the state’s duty of neutrality flowing from freedom of conscience and religion were subject to correctness review. The importance of the question for the legal system, it’s broad and general scope and the need to decide it in a uniform and consistent manner as well as the legislature’s decision to confer on the Tribunal and the ordinary courts concurrent jurisdiction over claims of discrimination rebutted the presumption that reviewing courts must defer to the Tribunal’s interpretations. Similarly, the Federal Court of Appeal observed in Canada (Canadian Human Rights Commission) v Canada (Attorney General)[26] that correctness review might be justified where different tribunals are called upon to interpret the scope of discrimination and the bounds of the bona fide justification defence under the same human rights legislation.

Could the interpretation of the scope of an exclusion clause under the Refugee Convention be recognized as a general question of law of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise? One might argue that the impact of the exclusion clauses is felt only in the area of refugee protection decision-making and that the RPD has a claim to expertise in interpreting the provisions of its enabling statute. Regarding the latter point, I have argued elsewhere[27] that the question should not be whether a tribunal has expertise but whether it has greater or “special” expertise relative to a reviewing court with respect to the particular issue before it, a view consistent with the Supreme Court’s indication in Mowat and Mouvement laïque that despite human rights tribunals’ acknowledged expertise in the interpretation of human rights legislation, their interpretation of the core principles of human rights laws falls under this correctness category. Moreover, the views expressed in Pushpanathan on the relative expertise of the IRB remain sound.

The scope of the exclusion clause was accepted in Pushpanathan as a “serious question of general importance” central to the human rights purpose underlying the Refugee Convention. Does it require a uniform and consistent answer because of its impact on the administration of justice as a whole or to safeguard a basic consistency in Canada’s fundamental legal order? In this respect, Justice Evan’s observation in Febles that Article 1F(b) is a provision of an international convention that should be interpreted as uniformly as possible bears closer examination. Reasonableness review of RPD interpretations of Article 1F could allow for variations in the scope of basic human rights that Canada has undertaken to enforce at international law. Such variations would sit uncomfortably with the proclaimed universality of the rights guaranteed in international human rights conventions. As noted by the Supreme Court in B010,[28] the Refugee Convention is one of these conventions, building as it does on the right of persons to seek and enjoy asylum from persecution in other countries set out in art. 14 of the Universal Declaration of Human Rights.[29] The deferential posture assumed by courts in reasonableness review is in tension with their responsibility to ensure the domestic application of international human rights. As noted by the Committee on Economic, Social and Cultural Rights:

Within the limits of the appropriate exercise of their functions of judicial review, courts should take account of Covenant rights where this is necessary to ensure that the state’s conduct is consistent with its obligations under the Covenant. Neglect by the courts of this responsibility is incompatible with the principle of the rule of law, which must always be taken to include respect for international human rights obligations.[30]

It could thus be argued that the interpretation of the exclusion clauses and the refugee definition directly engages Canada’s compliance with its international human rights obligations, a fundamental aspect of Canada’s legal order.

In B010, the Federal Court of Appeal determined that the ID’s interpretation of a provision of the IRPA providing for the inadmissibility to Canada of non-citizens engaging, in the context of transnational crime, in activity such as “people smuggling, trafficking in persons or money laundering” should be reviewed on a reasonableness standard. It held that the presumption of reasonableness review for a tribunal interpreting its home statute was not rebutted by any of the correctness categories from Dunsmuir. While the question may have been important, it was not outside the ID’s specialized area of expertise. The Court of Appeal distinguished its decision in Febles that a correctness standard would ensure the uniform interpretation of international conventions on the grounds that B010 focused on the interpretation of a statutory provision and that the relevant international instruments left to states the implementation of their objectives. While it declined to resolve the issue of the appropriate standard, the Supreme Court noted that the refugee protection aspects of the IRPA served to discharge Canada’s obligations under the Refugee Convention and the Smuggling Protocol[31] and it applied both the common law interpretive presumption that legislation conforms with Canada’s international obligations and the analogous statutory interpretive presumption set out in s. 3(3)(f) of the IRPA. The meaning that it gave these international obligations played a determining role in its interpretation of the inadmissibility provision. In light of this fact, the reasons advanced by the Federal Court of Appeal to distinguish Febles are not convincing; the case for correctness review of the interpretation of a statutory provision intended to implement the provisions of an international convention is as compelling as that for the interpretation of a provision of the convention itself.

The role of the certified question in the choice of standard of review

In Pushpanathan, the fact that the question of law subject to review had been certified as a serious question of general importance weighed strongly in favour of correctness review. In Kanthasamy, the Federal Court of Appeal justified correctness review of an immigration officer’s interpretation of the scope of a humanitarian and compassionate exemption on that basis. For a majority of the Supreme Court, Justice Abella held that “the fact that the reviewing judge… considered the question to be of general importance is relevant, but not determinative.”[32] She applied a reasonableness standard, presumably because the officer was interpreting her home statute. Significantly, the Court has confirmed that the presumption of reasonableness review for decision-makers’ interpretations of their home statute can be rebutted by the statutory language used to frame a right of appeal to the reviewing court. In Tervita Corp. v Canada (Commissioner of Competition),[33] an unusually-worded right of appeal providing that a decision on a question of law was appealable as of right to the Federal Court of Appeal as if it were a judgment of the Federal Court evidenced a clear Parliamentary intention that the decision be reviewed on a correctness standard. In their dissenting judgment in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd.,[34] Justices Côté and Brown, joined in dissent by McLachlin C.J. and Moldaver J., found that a provision granting a statutory right of appeal with leave to the Court of Queen’s Bench where a judge was of the opinion that the appeal involved a question of law or jurisdiction “of sufficient importance to merit an appeal” indicated that Alberta’s legislature intended such questions to be reviewed for correctness.[35] Their reasoning strongly supports reading the very similarly worded certification provision of the IRPA as intending correctness review of questions of law certified as serious questions of general importance.

Does the choice of standard of review make any difference?

Writing the Federal Court of Appeal’s judgment in B010, Justice Dawson stated that a reasonableness review of the ID’s interpretation of the inadmissibility provision would likely not give rise to conflicting interpretations because the range of possible, acceptable outcomes for a tribunal’s interpretation of its home statute could be narrow. She may well have been right. In Agraira and Kanthasamy, the Supreme Court conducted a reasonableness review of the decision-makers’ interpretations of provisions of the IRPA that could be mistaken for correctness review. Rather than focusing on the decision-makers’ reasons to decide whether their decisions fell within a range of possible, acceptable outcomes defensible in respect of the facts and the law, it launched into its own exercise in statutory interpretation and came to its own view of the reasonable (correct?) meaning of the statutory provision.

The choice of the standard of review matters for at least two reasons. First, and most importantly, refugee protection claimants, who cannot count on the protection of their home country to protect and vindicate their rights, rely on the willingness of Canada’s government and Canadian courts to comply with and enforce the provisions of international treaties that proclaim the universality of basic human rights. Selecting and applying the appropriate standard of review, as noted in Dunsmuir, is key to resolving the tension between the rule of law, which includes respect for international human rights obligations, and Parliament’s choice in endowing the IRB and immigration officials with broad powers over non-citizens’ lives. In some circumstances, the deferential review of immigration decision-makers’ interpretation of provisions of the IRPA may not be appropriate because of the nature of the international human rights norms these provisions seek to implement and the lack of independence and expertise of the officials charged with interpreting them. Significantly, uncertainty around the place of deferential review of decision-making that engages fundamental rights and the desirability of a blanket presumption of deference to decision-makers’ interpretations of their home statutes has not been confined to the immigration and refugee protection context.[36] Finally, Dunsmuir’s ambition of developing a principled framework to the judicial review of administrative decisions may never be realized – at least for immigration and refugee protection decision-making – if our appellate courts continue to duck the question of the appropriate standard of review or carry out correctness review under the guise of a reasonableness standard.

[1] S.C. 2001, c. 27 [IRPA].

[2] 2008 SCC 9, [2008] 1 SCR 190.

[3] 2013 SCC 40, [2013] 2 SCR 678 [Ezokola].

[4] 2014 SCC 68, [2014] 3 SCR 431 [Febles].

[5] 28 July 1851, [1969] Can TS No 6 [Refugee Convention].

[6] 2015 SCC 58, [2015] 3 SCR 704 [B010].

[7] 2017 SCC 50 [Tran].

[8] 2013 SCC 36, [2013] 2 SCR 559 [Agraira].

[9] 2015 SCC 61, [2015] 3 SCR 909 [Kanthasamy].

[10] [1998] 1 SCR 982, [1998] SCJ No. 46 [Pushpanathan].

[11] RSC 1985, c I-2 [repealed].

[12] Pushpanathan, supra note 10 at para 43.

[13] Ibid, at para 46.

[14] Ibid, at para 47.

[15] Can. T.S. 1980 No. 37, Arts 31, 32.

[16] Articles 1F(a) and (b) exclude from refugee protection under the Refugee Convention 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; and (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.

[17] Hernandez Febles v Canada (Citizenship and Immigration), 2012 FCA 324, [2014] 2 FCR 224 at para 24.

[18] Ibid, at para 78.

[19] [1990] 2 SCR 1324.

[20] Ibid, at para 34.

[21] [1993] 1 SCR 554 [Mossop].

[22] 2011 SCC 53, [2011] 3 SCR 471 [Mowat].

[23] Ibid, at para 22.

[24] Ibid, at para 23.

[25] 2015 SCC 16, [2015] 2 SCR 3 [Mouvement laïque].

[26] 2016 FCA 200 at para 86.

[27] Gerald Heckman, “Developments in Administrative Law: The 2014-2015 Term”, (2016) 72 SCLR (2d) 1 at 36.

[28] B010, supra note 6 at para 49

[29] G.A. Res. 217 A (III), U.N. Doc. A/810 at 71 (1948).

[30] Committee on Economic, Social and Cultural Rights, General comment No. 9, The domestic application of the Covenant, U.N. Doc. E/C.12/1998/24.

[31] Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2241 U.N.T.S. 480.

[32] Kanthasamy, supra note 9 at para 44

[33] 2015 SCC 3, [2015] 1 S.C.R. 161 [Tervita].

[34] 2016 SCC 47, [2016] 2 SCR 293 [Edmonton East].

[35] Ibid, at para 77.

[36] It has also been manifest following the Court’s decision in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 on the review of discretionary decisions engaging Charter rights. See, for example, the concurring minority judgment in Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 and E.T. v Hamilton-Wentworth District School Board, 2017 ONCA 893 per Lauwers J.A.

This content has been updated on February 20, 2018 at 21:56.