To Deport or Not to Deport, A Question of Reasonableness: SCC Grants Leave to Appeal to Mason v Minister of Citizenship and Immigration

On March 3, 2022, the Supreme Court of Canada (“SCC”) granted leave to appeal to Earl Mason, et al v Minister of Citizenship and Immigration, et al, SCC Case No 39855. This case is significant for being one of the first substantive appellate discussions of judicial review post-Vavilov (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]) and for interpreting the scope of section 34(1)(e) of the Immigration Refugee and Protection Act, SC 2001, c 27 [IRPA]. The SCC will be hearing an appeal from Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 [Mason], in which the Federal Court of Appeal (“FCA”) found that the Immigration and Refugee Board of Canada (“IRB”) was reasonable in deciding section 34(1)(e) could render migrants inadmissible to Canada for endangering the safety or lives of people in Canada even if their actions did not have a connection to national security. While on the surface the case is mostly about judicial review principles—specifically, reasonableness review of administrative decision-makers engaging with statutory interpretation—ultimately, the Supreme Court of Canada’s decision will have ramifications for whether migrants without serious criminal charges or national security concerns can be deported. 

Facts, Legislative Background, and Procedural History

Mason is an appeal of the Federal Court (“FC”) cases of two migrants—or foreign nationals as defined by IRPA—Earl Mason and Seifeslam Dleiow. Foreign nationals are those without permanent status in Canada which means that, unlike Canadian citizens, they face an increased risk of removal. For example, if foreign nationals are convicted of serious criminal behaviour, then they may be referred to the IRB to determine if they are inadmissible to Canada under section 36(1)(a) of IRPA. Mr. Mason arrived at the IRB because he was charged with attempted murder following a dispute at a music concert where he allegedly discharged a firearm eight times. The charges against him were stayed which resulted in section 36(1)(a) not being triggered. Mr. Dleiow’s path to the IRB began when he pled guilty to a break-and-enter connected to alleged domestic violence. Mr. Dleiow also did not fall within the ambit of section 36(1)(a) since he was not convicted of a serious crime—defined in IRPA as a crime with a maximum potential penalty of at least 10 years imprisonment, or a crime for which a sentence of more than 6 months imprisonment had been imposed.   

Given that both men fell outside the scope of section 36(1)(a), the Minister of Immigration and Citizenship instead used section 34(1)(e) of IRPA to allege that both migrants were inadmissible to Canada, necessitating deportation: 

34 (1) A permanent resident or a foreign national is inadmissible on security grounds for

…

(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; 

When adjudicating Mr. Mason’s case, the IRB’s Immigration Appeal Division (“IAD”) noted the lack of jurisprudence on section 34(1)(e) of IRPA. Given this lack of jurisprudential guidance, the IRB was required to engage in statutory interpretation of section 34(1)(e) before they could determine whether it applied to Mr. Mason and Mr. Dleiow. While the Minister maintained that the section applied to ‘security’ in the broader sense, Mr. Mason and Mr. Dleiow submitted that section 34(1)(e) required a connection to national security specifically—in other words, it should only apply to cases of terrorism, war crimes, or organized criminality. The theory behind Mr. Mason and Mr. Dleiow’s submission is that section 34(1)(e) cannot just be a catch-all for criminal conduct that does not fall within section 36(1)(a). Rather, Parliament must have intended for section 34(1)(e) to relate to the violent conduct to which all the other subsections of section 34 relate: national security. If section 34(1)(e) was indeed interpreted to require a national security nexus, then Mr. Mason and Mr. Dleiow’s conduct would not fall within its scope. In February 2019, the IAD determined that a national security nexus was not required and hence Mr. Mason did fall within the ambit of section 34(1)(e), rendering him inadmissible to Canada. A few months later, the IRB’s Immigration Division (“ID”) also decided that Mr. Dleiow was within the ambit of section 34(1)(e), finding no reason to depart from the IAD’s decision of Mr. Mason.

Both men brought judicial reviews of these decisions to the FC. In Mr. Mason’s case, Justice Grammond overturned the IAD’s decision (Mason v Minister of Citizenship, 2019 FC 1251 [Mason FC]). He determined that the IAD’s interpretation of section 34(1)(e) was incompatible with IRPA’s structure and the context of its inadmissibility provisions. Then Justice Grammond proceeded to outline a methodology for conducting a reasonableness review of an administrative decision maker’s statutory, which is explored in detail below. In the judicial review of Mr. Dleiow’s ID decision, Justice Barnes ruled similarly to Justice Grammond, citing the principle of comity (Dleiow v Minister of Citizenship, 2020 FC 59). However, on appeal to the FCA, the three-justice panel was unanimous in their decision, penned by Justice Stratas, to overturn the FC’s decisions in Mr. Mason and Mr. Dleiow’s cases. For a clearer timeline of both cases travelling from the IRB to the SCC, please see the chart at Appendix A. 

Competing Approaches to Judicial Review of Statutory Interpretation 

Justice Stratas’ main concern at the FCA was whether the FC was allowed to intervene into the IAD’s interpretation of IRPA section 34(1)(a). There was no dispute by the parties that the standard of review for the reviewing court was reasonableness over correctness; however the FCA was worried whether the FC was slipping into conducting a correctness review under the guise of a reasonableness review. As the FCA pointed out, Vavilov has left many things unclear, including the proper method of a reasonableness review when deferring to an administrator. 

Justice Grammond was aware of the irony of courts reviewing administrators’ statutory interpretation. He explained that while principles of statutory interpretation were too “technical” to hold administrators to, the “badges” of unreasonableness that a reviewing court should look for—a term attributed to Justice Stratas himself—were practically similar to statutory interpretation method conducted by the courts (Mason FC, para 17). Therefore, he concluded that “statutory principles [were] not compatible with deference” owed to administrators upon a reasonableness judicial review (Mason FC, para 21). Accordingly, Justice Grammond spent much time in his decision focusing on the many ways in which the IAD’s interpretation of section 34(1)(e) could not stand. For Justice Grammond, the “knock-out punch” argument rendering the IAD’s decision unreasonable was that IRPA’s structure and context of inadmissibility provisions, including sections 34 and 36, required section 34(1)(e) to contain conduct that has national security nexus. He outlined that Parliament has made specific policy choices—such as requiring a criminal conviction to render someone inadmissible—that the IAD’s decision ignored, despite Mr. Mason having raised it as an argument. For Justice Grammond, “[deference] did not permit decision-makers to subvert Parliament’s intent” (Mason FC, para 11). 

On the point of the IAD ignoring Mr. Mason’s argument on IRPA’s structure, Justice Stratas said that the failure of the administrator to mention something important in their reasons is not necessarily a fundamental gap which could make a decision unreasonable. He did not want reviewing courts to act like “literary critic[s] all too willing to find shortcomings;” implying that noting the importance of national security nexus for 34 was a mere shortcoming (Mason, para 37). In addition, Justice Stratas was critical of the “knock-out punch” method since it required the reviewing court to conduct its independent analysis of section 34(1)(e)—in other words, the FC had “[fashioned] its own yardstick” to measure the administrator’s interpretation against, which the FCA said constituted a correctness review (Mason, para 24). Justice Stratas advised a different methodology instead: that reviewing courts should conduct only a preliminary analysis of the text, context, and purpose of the legislation when reviewing an administrator’s statutory interpretation. In this way, courts need only understand the “lay of the land” in order to then understand the administrator(s)’s reasons (Mason, para 17). For Justice Stratas, an administrator—to whom Parliament has tasked with applying legislation given their expertise over courts—has a range of interpretations available when applying legislation; as long as their interpretation is reasonable, the administrator deserves deference. As per the FCA, this is the correct interpretation of Vavilov on how to conduct a reasonableness review. 

Although Vavilov was not published when the FC decision was made, Justice Stratas says that the FC should have followed the deferential method outlined in Hillier v Canada (Attorney General), 2019 FCA 44 [Hillier]—a decision also penned by Justice Stratas himself. While the FCA in Mason, says that “[by] necessary implication, Vavilov supports the Hillier approach,” it is clear that the current jurisprudence is insufficient to provide proper guidance to reviewing courts on the correct approach (Mason, para 20). Administrative law professor, Paul Daly—who was cited by both the FC and FCA in this case—has remarked on how the Hillier approach has differed from other courts in Canada. Justice Stratas and Justice Grammond’s competing interpretations are emblematic of the tension present at the heart of jurisprudence contemplating the reasonableness analysis, which Justice Grammond outlined in the FC decision: 

These widely diverging views of what deference requires in matters of statutory interpretation mirror the fundamental tension between the need to enforce the rule of law and the need to respect the autonomy of administrative decision-makers. That tenson lies at the core of judicial review. (Mason FC, para 11, citing Dunsmuir v New Brunswick, 2008 SCC 9; emphasis added). 

Without the Supreme Court’s guidance, we do not know which method is correct: Justice Grammond’s from the Federal Court,  Justice Stratas’ from the Federal Court of Appeal, or another approach from provincial courts in Canada. What we do know is that the decision will affect how section 34(1)(e) of IRPA is interpreted in this case. 

In line with his method, Justice Stratas refused to conduct his own interpretation of section 34(1)(e) and said that the correct interpretation was indeed “open to some debate” (Mason, para 76). His recommendation was for the IRB to formally refer the matter to the FC to determine a coherent interpretation for administrators—without deference—as per section 18.3(1) of the Federal Courts Act, RSC 1985, c F-7. From a practical standpoint, it is doubtful that the IRB would refer the matter now that the FCA has upheld the IAD and ID’s interpretation that 34(1)(e) does not require a nexus to national security. Indeed, in my brief legal research, it seems the IRB has seldom referred any matter to the Federal Court under section 18.3(1) and it seems unlikely that they would start with this case. Even if the IRB now chose to refer this question of statutory interpretation to the FC, it seems somewhat redundant, given that the FC has already weighed in on the interpretation of section 34(1)(e). As outlined in Appendix A below, there have been six separate adjudications in relation to this question spanning four levels of tribunals and courts thus far. Now the current highest court having heard the matter suggests we return back to the lower court so that the same issue may be decided on a different standard of review. It is no surprise when litigants come into contact with the justice system, their notions of justice are quickly  disabused when they witness the courts spending time on overly legalistic questions and lengthy processes that, on the ground, have serious ramifications on litigants’ lives and livelihood. 

The FC has already weighed in on the serious issues at play with the IAD’s interpretation of section 34(1)(e). Whether Justice Grammond’s refusal defer to the IRB for statutory interpretation is within the scope of a reasonableness review or a correctness one is yet to be determined by the SCC. The FCA in Mason however may not be taking seriously the grave consequences that an interpretation of a statute can have if it is indeed reasonable but incorrect.

Consequences for Migrants with Expanding Inadmissibility 

In effect, Mason has still made a decision on the interpretation of section 34(1)(e) despite refusing to interpret it. The FCA has endorsed the IAD’s interpretation by default: that a migrant can be found inadmissible in Canada for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada” without a criminal conviction or national security nexus. Justice Grammond pointed to many other inadmissibility provisions of IRPA to demonstrate how such an interpretation is incompatible with Parliamentary intent. One significant issue raised by the IAD’s interpretation is the standard of proof: for section 36 where criminal convictions are required, the standard is proof is beyond a reasonable doubt, a very high threshold which is protected by section 11 of the Charter or Rights and Freedoms. However, for other IRPA inadmissibility sections including section 34, the standard is much lower: there must only be “reasonable grounds to believe that [the facts] have occurred, are occurring or may occur” (Mason FC, para 47). This standard is below even the low civil standard of proof of a balance of probabilities. This means that if government officers can prove ‘reasonable grounds’ for a migrant engaging in “acts of violence” that “might” hurt the “safety of Canadians,” then they may be inadmissible and hence deported from Canada (IRPA, s 34(1)(e)). Justice Stratas reasoned that the IAD must have “interpreted ‘safety’ as something approaching the level of threat to life, not just minor harm,” but the IRB has not provided a basis to for us to reasonably trust that future immigration officers and boards will adhere to the high, unspoken threshold, and not allow minor harm to result in inadmissibility.

In addition to the standard of proof issue, Justice Grammond explained that migrants inadmissible under the IAD’s broad interpretation of section 34(1)(e) would not have the right to appeal their decision to the IAD under section 64(1) of IRPA, nor be eligible for a full pre-removal risk assessment (“PRRA”), and would be barred from  filing a humanitarian and compassionate (“H&C”) grounds application. PRRAs can help consider the risk one would be exposed to were they to be returned to their country of origin and H&C applications can consider the effects of separation from one’s family and communities. These reduced rights for migrants captured by section 34 make a deportation order more probable. Thus not only may more people be rendered inadmissible for potentially minor harms, but they will have less access to justice processes that may allow them to remain in Canada and instead will be subject to the cruelty of deportation: the risk to personal safety and separation of families.

Although future IRB decisions can apply section 34(1)(e) differently—since they are persuasive but not binding—Mason has said that the principle of consistency and certainty among administrators is a defensible approach, meaning that future IRB decisions could continue to interpret section 34(1)(a) expansively to concord with the current IAD’s decision of Mr. Mason. Therefore, if the Federal Court of Appeal’s decision of Mason stands, it would expand the powers of Immigration and Citizenship Canada to render migrants inadmissible even if their actions do not secure a criminal conviction nor raise national security concerns. This ultimately would grant the state more discretionary power and less accountability in their treatment of migrants. In providing much needed guidance on how to apply the Vavilov reasonableness review to questions of statutory interpretation by administrative decision-makers, the Supreme Court of Canada should keep Justice Grammond’s cautions of IRPA’s structure, and its consequences in migrants, in mind. 

Image found here.

Appendix A: Procedural History of Mr. Mason and Mr. Dleiow’s Cases