Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 5 minutes.

Latest Cases

  1. The SCC is releasing its decision in the immigration case of Canada (Citizenship and Immigration) v. Mason on Wednesday, Sept. 27. At issue is whether “inadmissible on security grounds” for acts of violence that could endanger Canadians requires proof the conduct is connected to national security issues. This decision could involve a significant standard of review analysis.
  2. Since we broke for the summer, the SCC released two decisions in July: R. v. Abdullahi, 2023 SCC 19 and R. v. Kahsai, 2023 SCC 20.

Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.

New Season Starting Soon

Hope everyone had a great summer. With the SCC releasing its decision early (on a Wednesday) this week, we’ll treat it as a warm-up. The new season will officially begin with the next decision after this one and we’ll start tracking prediction streaks at that point.

Reviewing Inadmissibility on Security Grounds Decisions

Appeal by leave from Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156

View the SCC webcast & read the factums

What Happened?

Background: The appellants Mason and Dleiow were foreign nationals in Canada that were alleged to have committed violent acts. Mason was allegedly involved in a dispute at a music concert where he discharged a firearm eight times and injured two persons. Two charges of attempted murder were laid against him, but the charges were subsequently stayed. Dleiow was alleged to have committed various crimes, including assault against women on a number of occasions, but no convictions had been entered.

Tribunal: Section 34(1)(e) of Immigration and Refugee Protection Act (“IRPA”) provides that permanent residents or foreign nationals are “inadmissible on security grounds” for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. The Minister alleged that both appellants were foreign nationals who were inadmissible under s. 34(1)(e) of the IRPA. Other provisions, like s. 36 (inadmissible for criminality), weren’t applicable because there had not been convictions.

The issue before the Immigration Board and the Immigration Appeal Division (“IAD”) was whether s. 34(1)(e) applied only where there is a connection to national security or whether it applied beyond cases of terrorism, organized crime, war crimes or crimes against humanity. The Board in Mason found it must include a national security element. The IAD overturned this decision. In their view, s. 34(1)(e) operates whether or not there is a connection to national security. The Board in Dleiow then followed the IAD decision in Mason.

Federal Courts: On judicial review, the Federal Court quashed the decisions in the two cases. Both cases were heard together at the Federal Court of Appeal. It allowed the appeals, set aside the judgments of the Federal Court and dismissed the applications for judicial review. It found the administrative interpretation of s. 34(1)(e) was reasonable and that s. 34(1)(e) does not require proof of conduct that has a nexus with “national security” or the “security of Canada”. Justice Stratas wrote the decision and spent a considerable amount of time discussing the proper approach to the standard of review.

What Was Argued at the SCC?

Appellant: The appellants argued that a broad interpretation of s. 34 converts it to a more severe security provision than Parliament had intended. The FCA failed to consider all salient elements of a modern statutory interpretation analysis. The FCA departed from Vavilov by trying to bolster the IAD’s deficient decision.

Respondent: Canada argued that public safety is at the heart of Canada’s immigration laws and the FCA and IAD’s interpretation of s. 34 is reasonable. It says the Federal Court essentially conducted a disguised correctness review.

What Else Should You Know Before Making a Prediction?

Waiting over 300 days for a SCC decision is not that unusual, but I have to wonder whether Justice Brown’s unexpected retirement had anything to do with the delay. He was particularly active and engaged in the hearing. I also got the impression there would be a split in this appeal with Justices Brown, Rowe and Côté aligning. That being said, the case engages complex standard of review issues, which the Court may be taking extra time with to ensure they get it right. I’m interested to see how the Court addresses the issue of whether there can be only one reasonable interpretation of a legislative provision.

Over the Summer at the SCC

As expected, the summer was quiet at the SCC. The Court released two decisions: R. v. Abdullahi, 2023 SCC 19 and R. v. Kahsai, 2023 SCC 20.

In Abdullahi, the Court (7:1 Côté J. dissenting) allowed the appeal and ordered a new trial on the conviction for participation in the activities of a criminal organization. The majority found that the trial judge’s instruction did not sufficiently equip the jury to decide if a criminal organization existed. The trial judge failed to explain to the jury that a criminal organization is one that, by virtue of its structure and continuity, poses an enhanced threat to society.

In Kahsai, the Court unanimously dismissed the appeal and the new trial request for the appellant, who represented himself at trial and was convicted of two murders. The Court provided some clarification on the role of amicus curiae in a criminal trial. It found that the trial was fair and that the appointment of an amicus with a broader mandate was at the trial judge’s discretion but that he was under no obligation to do so.

-Tom Slade

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