In September 2023, the Supreme Court of Canada took the opportunity to further clarify the standard of review following the seminal case: Canada (Minister of Citizenship and Immigration) v. Vavilov. As discussed below, the Court made it clear that reasonableness is the default standard, and correctness will only arise in limited situations.
Facts
Mr. Mason was a foreign national in Canada. In 2012, he was charged with two counts of attempted murder and two counts of discharging a firearm following an argument with a man in a bar. The charges were eventually stayed because of delay.
Following the incident, an inadmissibility report was prepared alleging that Mr. Mason was inadmissible to Canada on “security grounds” under s. 34(1)(e) of the Immigration and Refugee Protection Act (IRPA).
The impugned section 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 for admissibility hearings.
Upon considering the case, the Immigration Division ruled that a security ground under s. 34(1)(e) requires a threat to the security of Canada or another country, and that the act of violence in question must relate to a threat to the security of Canada. As Mr. Mason’s alleged conduct lacked any element that would elevate it to security grounds, the Immigration Division held that s. 34(1)(e) could not apply.
The Immigration Appeal Division, however, allowed the Minister of Public Safety and Emergency Preparedness’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.
The Federal Court allowed Mr. Mason’s application 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 doing so, the Federal Court, under s. 74(d) of the IRPA, certified the following question as one 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 appeal, holding that the Immigration Appeal Division had reasonably interpreted s 34(1)(e) as not requiring a nexus to national security or the security of Canada. In so doing the Federal Court of Appeal stated that a reviewing court such as itself should not fashion its own yardstick and use it to measure what the administrator did, but should instead conduct “a preliminary analysis of the text, context and purpose of the legislation just to understand the lay of the land before they examine the administrators’ reasons”
Mr. Mason appealed to the Supreme Court of Canada. During his appeal, he argued that applicable the standard of review was correctness as the question was certified for appeal under section 74(d) of the IRPA because it was a serious question of general importance.
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