​​Reasonably Robust Reasonableness: Mason v Canada (Citizenship and Immigration)

At issue in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason] was whether “acts of violence” in s. 34(1)(e) of the Immigration Refugee and Protection Act, SC 2001, c 27 [IRPA] requires a nexus to national security, or relates only to violence broadly, in order to find a permanent resident or foreign national inadmissible to Canada. 

Mason does important work in two ways. For the immigration context, we have certainty that s. 34(1)(e) requires a connection to national security. With respect to the reasonableness standard of review, discussed below, the Court reached its conclusion through a “robust” reasonableness analysis, going beyond what the Federal Court of Appeal (“FCA”) deemed appropriate for the deferential standard. 

In spite of his perhaps unfair criticisms levied at the FCA, Jamal J.’s reasons (for the majority) should be valued for confirming the effectiveness of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] and quashing any lingering concerns that a presumption of deference would restrain courts from meaningful review.

This comment analyzes the potential uncertainty in how the Court reviewed for reasonableness an issue that was not raised before the administrative decision-maker then considers how the correctness category might have prevented the errors that the Court found in the FCA decision.

 

Summary of Facts and Procedural History

Facts

Mr. Mason and Mr. Dleiow are foreign nationals living in Canada. Mr. Mason was charged with two counts of attempted murder and discharging a firearm after an argument at a concert in Surrey, B.C. Both counts were stayed because of delays, thus, Mr. Mason was not found guilty.

Separately, Mr. Dleiow was alleged to have engaged in intimate partner violence. Multiple charges were laid and Mr. Dleiow pled guilty to three of those charges for which he received a conditional discharge. Neither Mr. Mason nor Mr. Dleiow engaged in acts with a connection to national security. 

Both men were later found inadmissible to Canada under s. 34(1)(e) of the IRPA when the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board held that the provision only required conduct related “to security in a broader sense.” The provision reads:

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…

 

Judicial Review and Appeal

On judicial review, the Federal Court of Canada (“FC”) allowed both Mr. Mason (Mason v Canada (Citizenship and Immigration), 2019 FC 1251) [Mason FC] and Mr. Dleiow’s (Dleiow v Canada (Citizenship and Immigration), 2020 FC 59) applications, holding that the IAD’s interpretation missed key features of the IRPA which gave rise to what the FC termed a “knock-out punch,” by which the IAD decision should be overturned (Mason FC, para 25). At the time, the FC did not have the benefit of Vavilov.

Under IRPA s. 74(d), an appeal to the FCA may only be made if the FC “certifies that a serious question of general importance is involved.” Accordingly, the FC certified the question: 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”?

At the FCA, Stratas J.A. for the court decided Messrs. Mason and Dleiow’s cases together, and held that it was reasonable to find that s. 34(1)(e) does not require a nexus to national security (Canada (Citizenship and Immigration) v Mason, 2021 FCA 156) [Mason FCA]. The FCA concluded that the IAD was alive to essential elements of s. 34(1)(e)’s text, context, and purpose, finding no omitted factors that would undermine confidence in the outcome.

 

At the SCC

The Supreme Court of Canada (“SCC”) was unanimous in interpreting s. 34(1)(e) as requiring a connection with national security. However, the Court split on the standard of review question.

A majority of the Court held that no existing correctness category applied in Mason. Further, no new exception to the reasonableness standard should be carved out solely on the grounds that the appeal involved a certified question for appeal to the FCA. Justice Côté, concurring in the result, argued that the certified question should be categorized as a matter reviewable for correctness.

Applying the reasonableness analysis, Jamal J. took issue with the IAD’s decision for failing to address three substantial legal constraints: (1) two points of statutory context (Mason, paras 86–97); (2) the broad implications of the decision (Mason, paras 98–103); and (3) constraints imposed by international law required to be considered under s. 3(3)(f) IRPA (Mason, paras 104–117). Given the legal constraints that the Court reviewed, the majority found there could be only one reasonable interpretation of s. 34(1)(e).

On the first issue, statutory context, Jamal J. held that the IAD overlooked the higher level of stringency for relief from inadmissibility under s. 34 (security grounds) compared to a similar provision, s. 36 (serious criminality and criminality). This, Jamal J. found, suggests s. 34 defines more severe forms of inadmissibility related to the connection with national security. Within the IAD’s interpretation, it would often be comparatively advantageous for a foreign national to be convicted of a crime, rather than being found not guilty or conditionally discharged, which would make available an application for admissibility on humanitarian and compassionate grounds—an avenue open to those deemed inadmissible under s. 36 but not s. 34 (Mason, paras 88–89).

Similarly, Jamal J. held, the IAD failed to consider differences in the “pre-removal risk assessment” between the two provisions. The s. 34 assessment encompasses conduct that poses a “danger to the security of Canada” while s. 36 contemplates conduct that poses a “danger to the public in Canada” (Mason, paras 93–94). 

On issue two, the IAD’s reasons did not address the broad consequences of its interpretation which amounted to a failure of “responsive justification.” The IAD should have explained how its decision reflected the legislature’s intention given the harsh consequences that follow (Mason, para 98). 

Third, under the IAD’s interpretation, a scenario emerges wherein a foreign national could face deportation to persecution without a prior determination that the individual poses a national security threat, violating Canada’s international commitments and non-refoulement obligations under the Convention Relating to the Status of Refugees (“Refugee Convention”) (Mason, para 104). 

Although the international law argument was not raised at the IAD (Mason FCA, para 72; Mason, para 116), the IAD was obligated to interpret and apply the IRPA in a manner consistent with Canada’s international human rights commitments, including the Refugee Convention (Mason, paras 31 and 104), which place constraints on the IRPA’s interpretation and establishes a presumption of conformity with international law (Mason, paras 104 and 106). 

Justice Jamal did not address how the Court got to an independent assessment of the international law argument, which did not appear at the IAD or in its reasons. However, he did state that the IAD was required to interpret the IRPA according to the relevant constraints.

 

Analysis

Reasonable analysis when deciding issues anew

The IDA’s lack of acknowledgement of certain parts of the IRPA was a primary focus for the SCC in determining what was reasonable. This was also noted as a key issue in TheCourt.ca’s Mason Appeal Watch article. In conducting its reasonableness review, the majority also exemplified the challenge of how deferential a reviewing court ought to be and whether it should hear a new issue.

The FCA did acknowledge the international law argument brought to it, but in going to the merits of the statute’s interpretation, held it was for the merits-decider to determine. As Stratas J.A. put it, a reviewing court is “not interpreting the provision itself: it is reviewing the administrator’s interpretation” (Mason FCA, para 66).

In the Mason SCC hearing, Jamal J. remarked that the international law constraint issue may be the clearest indicator of only one remedy. It seems that, for the SCC, since the IAD was required to take s. 3(3)(f) into consideration and there was only one interpretation in light of this, it was appropriate to determine the issue de novo. Indeed, the majority held that the IAD was “required by its home statute to interpret and apply the IRPA in a manner that complies” with Canada’s international obligations, notwithstanding that this argument wasn’t raised by the parties at the IAD (Mason, para 104). 

The Mason Court was otherwise silent on exactly how it got from its review of the administrator’s decision, to not just determining the issue anew, but determining on new issues.

I find it unclear how the SCC’s analytical work figures with Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 [Alberta Teachers’] as the authority for the principle that new issues before the reviewing court should “generally” not be heard (paras 22–23). 

I suppose the SCC’s analysis could fit within the general limit Alberta Teachers’ sets out such that new issues should not be considered unless it is clear that doing so would unequivocally reinforce the only one reasonable outcome. In support of the Court’s reasoning, Vavilov does say that in circumstances where there is only one reasonable outcome, “it would serve no useful purpose to remit the interpretative question to the original decision maker” (para 124). Alternatively, the rationale might be that if the decision-maker ought to have considered an issue relating to interpreting its home statute but failed to do so, it is not a new issue. 

Without further guidance both seem like a departure from Alberta Teachers’. This leaves me wondering where a “robust” review and review of new issues intersect. Perhaps it is unnecessarily nitpicky, but the FCA has relied on Alberta Teachers’ for this principle twice since Mason in Klos v. Canada (Attorney General), 2023 FCA 205; Canada (Attorney General) v. Ibrahim, 2023 FCA 204).

Regardless, Jamal J. found that the IAD failed to address the international law legal constraints and could not be justified in doing so because its reasons did not account for an argument that must be considered; in the words of Vavilov, it left a “fundamental gap” (Vavilov, para 96). 

Without further clarification, the best justification might be from Vavilov’s call to consider not just the outcome, but for a decision to be justified and not merely justifiable. This is an aspect of Vavilov that may have been under-appreciated by the FCA until reaffirmed in Mason—that is, “a reasonable decision” is one that is “justified in relation to the facts and law that constrain the decision maker” (Vavilov, para 85), even those that do not show up in the decision-maker’s reasons.

Of course, none of this affects the review starting point. The reasons-first approach is so sacred, it is apparently even preliminary-assessment-phobic: While the FCA for its part also conducted a reasonableness review, deferring to the IAD’s reasons, Jamal J. denounced the FCA for grafting onto Vavilov an extra step for “conducting a preliminary analysis of the text, context and purpose of the legislation just to understand the lay of the land before … examin[ing] the administrators’ reasons” (Mason FCA, para 17; Mason, para 79), risking a disguised correctness review.

I think it’s noteworthy that Stratas J.A. made his preliminary analysis comment to limit the extent that a court conducts an independent (or, de novo) analysis. It’s also not clear to me that the FCA even followed this approach, given that the comment was addressed at the FC’s yardstick fashioning, with Stratas J.A. stating that a lay of the land may be conducted for context, but shouldn’t amount to whatever leads to a correctness review.

While it’s not illogical, I find it unsatisfactory that the Court would criticise the FCA for tacking an additional preliminary step onto the reasonableness category, then hear the unaddressed international law issue de novo, which Vavilov generally instructed against (Vavilov, para 83). In these circumstances, Vavilov recommends, courts should pause before concluding definitively (para 124). I would think the above-mentioned distinction between reweighing evidence anew and hearing a new issue might influence the length of pause if a clearer Alberta Teachers’ limit were fashioned.

What Mason tells us is that while a preliminary lay-of-the-land assessment is inappropriate, a robust review may go beyond the reasons to uncover what the decision-maker failed to consider, but should have.

To me, this exemplifies a tension between deference and robust review. That tension brings us back to the question of standard of review, and why the certified question issue might appropriately rebut the presumption of reasonableness.

 

Certified Questions Might Best Be Answered Correctly

Setting aside for a moment Côté J.’s observation that most case law doesn’t appear to comport with the majority’s finding that reasonableness applies to certified questions (Mason, para 131), the interplay between the levels of courts hearing this case strikes me as one possible reason to prefer finding a new correctness category, at least for the IRPA. 

We now know that the only possible interpretation of the IAD’s determination on Canada’s international law obligations was that it was unreasonable. What if the IAD sufficiently addressed the issues on a similar question, giving adequate reasons, and concluded the same? For Côté J., this risks future deportation of foreign nationals who may face persecution, contrary to Canada’s international commitments (Mason, paras 156 and 158). I don’t find this exact scenario worrisome, given the majority’s heavy reliance on Vavilov’s “responsive justification” scaffolding and their robust review.

Nevertheless, Côté J.’s hypothetical parallels the Mason judicial history. Reading into Stratas J.A.’s analysis and his acknowledgement of competing interpretations, I would like to think the FCA could have found the IAD’s interpretation incorrect, even if reasonable. For Stratas J.A., the IAD’s decision wasn’t reasonable because it was correct—it was reasonable because it was justified by the reasons provided. 

Regarding precedent on the matter, Côté J. mentioned the two notable cases where the SCC did apply reasonableness on certified questions—Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 [Agraira] and Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy].

In Agraira, the Court conducted a reasonableness review of a statutory interpretation question without answering why it previously addressed those types of certified questions by providing a definitive answer. Kanthasamy simply followed Agraira, providing more analysis. But as Paul Daly remarked, Kanthasamy overlooked factors that pointed to correctness.

What’s more is that when Abella J. in Kanthasamy cites Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 to say that the certified question is merely a “trigger” for an appeal and that the subject of appeal is still the judgement itself, the paragraph she references draws on Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 [Pushpanathan]. And while it’s correct, Bastarache J. for the Pushpanathan majority also stated that certified questions “would be incoherent if the standard of review were anything other than correctness” (para 43).

Pushpanathan, one might think, answered the legislative intent question. And without having explicitly upended this position, Vavilov’s emphasis on legislative design choice (Mason, para 43, citing Vavilov, para 70), though not dispositive, could support it.

It does seem incongruous that Parliament would create a mechanism for courts to review questions of general importance arising under the IRPA, but intend the courts to defer to reasonable administrative decisions that are wrong on law. Stratas J.A. himself, writing extra-judicially, commented on Kanthasamy stating that as a result, the federal courts may have to answer the certified question correctly and in doing so find the decision-maker misapplied the law, then go on to determine if the incorrect view should stand.

In Mason, Jamal J. concluded on the certified question matter rather unconvincingly, reminding us that recognizing a new correctness category would conflict with Vavilov’s goal of “simplifying and making more predictable the standard of review framework” (Mason, para 53, citing Vavilov, para 47). I want to briefly echo a cogent point raised by Mark Mancini, that Mason is analogous to Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30 [“SOCAN”] in that there was a legislative signal for involvement of the courts. SOCAN created a sixth correctness category last year by observing that concurrent jurisdiction of the decision-maker and the courts satisfied that signal of intent. 

In Alexandra Robbins’ apposite TheCourt.ca analysis on SOCAN, she noted that Vavilov contemplated concurrence as a correctness category, but opted against it. Reviving the category in SOCAN seems no less unpredictable than giving correctness status to a category that, until Agraira and Kanthasamy, appears to have held it more often than not (Mason, para 129). In Mason, the Court would merely revive a standard that, even though uncertain at the time during which it was departed from, was broadly held. If that was possible in SOCAN, why not Mason?

Ultimately, this issue was resolved in Mason through the Court characterising s. 74(d) for its “gatekeeping” function. While the aspect of s. 74(d) that permits appeal only on certification clearly has a gatekeeping function, “serious questions of general importance” according to Côté J. are, by definition, “questions that transcend the interests of the parties and raise issues of broad significance within Canada’s immigration and refugee protection scheme” (Mason, para 125). Nevertheless, the SCC views the gatekeeping function as sufficient to signal that the provision does not also call for court involvement. This may be fair given that an s. 74(d) scenario is distinguishable from concurrent jurisdiction and rights of appeal in that it is the FC alone that decides to certify the question.

That raises the question: did the legislature intend to give the judicial involvement authority to the FC itself? The certified question regime adds an additional step furthering itself from legislative intent—where concurrent jurisdiction is established directly in legislation and concurrent jurisdiction is a signal for correctness, the certified question provision gives a court the authority to determine which cases should move to appeal. One could easily argue that this places the intent element into the Federal Court’s hands. Nevertheless, I agree with Mancini on the similarity to SOCAN.

Of course, Vavilov’s own solution, when it chose to not establish a correctness category where arbitrariness was an ongoing risk, was to lean on the “more robust form of reasonableness” (para 72). That was indeed what proved the winner in Mason. I think it’s worth concluding on this matter with what Mancini observed, that only rare and special cases will warrant the creation of a new correctness category. 

 

Conclusion

Mason affirms that reasonableness may be comprehensive. This will be relevant for those who would benefit from a robust review when correctness is unavailable. Taking direction from Jamal J., lower courts may be more assured in reviewing beyond submissions and/or implied bases of decisions at the administrative level if a critical contextual component is overlooked.

 

Author: Joel Robertson-Taylor

Editor: Meredith Wilson-Smith