Mason v. Canada (Citizenship and Immigration), 2021 FCA 156, 2023 SCC 21 (39855)
“M and D are both foreign nationals in Canada. In 2012, M was charged with two counts of attempted murder and two counts of discharging a firearm following an argument with a man in a bar during which M fired a gun. The charges were eventually stayed because of delay. In unrelated incidents, D was alleged to have engaged in acts of violence against intimate partners and other persons. Some of the criminal charges flowing from these incidents were stayed and he pled guilty to three charges and received a conditional discharge.
Following these incidents, inadmissibility reports were prepared alleging that both M and D were inadmissible to Canada on “security grounds” under s. 34(1)(e) of the Immigration and Refugee Protection Act (“IRPA”), which provides that a permanent resident or foreign national is inadmissible for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. The reports were referred to the Immigration Division (“ID”) for admissibility hearings. It was not alleged that either M or D engaged in acts of violence with a link to national security or the security of Canada. In M’s case, the ID ruled that a “security ground” under s. 34(1) 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. As M’s alleged conduct lacked any element that would elevate it to security grounds, s. 34(1)(e) could not apply. The Immigration Appeal Division (“IAD”), however, allowed the Minister’s appeal and concluded that inadmissibility under s. 34(1)(e) related to security in a broader sense, namely, to ensure that individual Canadians are secure from acts of violence that would or might endanger their lives or safety. In D’s case, the ID followed the IAD’s interpretation of s. 34(1)(e) in M’s case, concluded that D was inadmissible, and issued a deportation order.
The Federal Court allowed M and D’s applications for judicial review, ruling that it was unreasonable to interpret s. 34(1)(e) as applying to acts of violence without a nexus to national security. In both cases, the Federal Court certified, under s. 74(d) of the IRPA, the following 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 M’s case and ID in D’s case had reasonably interpreted s. 34(1)(e) as not requiring a nexus to national security or the security of Canada.”
The SCC (8:0) allowed the appeals; re M, IAD decision quashed; re D, decision and deportation order quashed.
Justice Jamal wrote as follows (at paras. 1-11):
“These appeals require the Court to apply the framework for judicial review developed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, to two administrative decisions involving a question of statutory interpretation in the immigration context.
The statutory provision at issue, s. 34(1)(e) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), provides 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”. The key point of disagreement among the administrative decision makers and courts below is 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.
Both administrative decisions under review interpreted s. 34(1)(e) as not requiring the acts of violence to have a link to national security or the security of Canada. In the first administrative decision, the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board of Canada (“IRB”) ruled that Mr. Earl Mason, a foreign national, could be found inadmissible under s. 34(1)(e) if his alleged violent conduct were established. Mr. Mason allegedly shot a gun and wounded two people when he was assaulted during a fight at a bar. Charges against him were stayed and he was not convicted of any criminal offence. In the second administrative decision, the Immigration Division (“ID”) of the IRB followed the IAD’s interpretation of s. 34(1)(e) in Mr. Mason’s case and ruled that Mr. Seifeslam Dleiow, a foreign national, was inadmissible under s. 34(1)(e) for acts of violence against two intimate partners. It was not alleged that either Mr. Mason or Mr. Dleiow engaged in acts of violence with a link to national security or the security of Canada.
The Federal Court allowed Mr. Mason and Mr. Dleiow’s applications for judicial review. In Mr. Mason’s case, in reasons released before this Court released Vavilov, the Federal Court ruled that it was unreasonable to interpret s. 34(1)(e) as applying to acts of violence without a nexus to national security. The Federal Court followed that approach in Mr. Dleiow’s case. Thus, neither Mr. Mason nor Mr. Dleiow was inadmissible. In both cases, the Federal Court also certified serious questions of general importance, so that the Federal Court of Appeal could consider whether it was reasonable to interpret s. 34(1)(e) as not requiring proof of conduct having a nexus to national security or the security of Canada.
The Federal Court of Appeal allowed both appeals. In reasons addressing both cases — released after this Court released Vavilov — the Court of Appeal ruled that the IAD and ID had reasonably interpreted s. 34(1)(e) of the IRPA as not requiring a nexus to national security or the security of Canada.
Mr. Mason and Mr. Dleiow now appeal to this Court. Two issues arise. First, what standard of review should the reviewing courts have applied when reviewing the decisions of the IAD in Mr. Mason’s case and the ID in Mr. Dleiow’s case? Second, how should that standard of review have been applied in the circumstances?
In Vavilov, this Court revised the framework for determining the standard of review. The Court established a presumption that the standard of review of the merits of an administrative decision is reasonableness, subject to limited exceptions based on legislative intent or when required by the rule of law (paras. 10 and 17). The revised framework seeks to maintain the rule of law, while respecting a legislature’s intent to entrust certain decisions to administrative decision makers rather than courts (paras. 2 and 14). It also aims to bring simplicity, coherence, and predictability to the law on the standard of review and to eliminate the unwieldy exercise of determining the standard of review based on contextual factors, as had been required by this Court’s jurisprudence following Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Vavilov, at paras. 7 and 10).
Vavilov also explained how a court should conduct reasonableness review. This Court stressed that reasonableness review and correctness review are methodologically distinct (para. 12). Reasonableness review starts from a posture of judicial restraint and focusses on “the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place” (paras. 15 and 24). When an administrative decision maker is required to provide reasons for its decision, reasonableness review requires a “sensitive and respectful, but robust” evaluation of the reasons provided (para. 12). A reviewing court must take a “reasons first” approach that evaluates the administrative decision maker’s justification for its decision (para. 84). An administrative decision will be reasonable if it “is based on an internally coherent and rational chain of analysis and . . . is justified in relation to the facts and law that constrain the decision maker” (para. 85). This Court also affirmed “the need to develop and strengthen a culture of justification in administrative decision making” (para. 2).
Applying the Vavilov framework to these appeals, I conclude that the standard of review of the administrative decisions at issue is reasonableness. No established exception to the presumption of reasonableness review applies, 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. Both administrative decisions were unreasonable. In particular, the IAD in Mr. Mason’s case, whose interpretation of s. 34(1)(e) was followed in Mr. Dleiow’s case, failed to consider three significant legal constraints bearing on its decision. First, the IAD failed to address critical points of statutory context that Mr. Mason had raised in his submissions to the IAD. Second, the IAD failed to address the potentially broad consequences of its interpretation, which again Mr. Mason had raised in his submissions. These omissions involved significant failures of “responsive justification” that would cause a reviewing court to lose confidence in the IAD’s decision. Third, the IAD failed to interpret and apply s. 34(1)(e) in compliance with international human rights instruments to which Canada is a signatory — specifically, the obligation of non-refoulement under Article 33(1) of the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”) — contrary to the express direction in s. 3(3)(f) of the IRPA that it must do so. The IAD’s failure to consider these three legal constraints rendered its decision unreasonable.
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.”