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.
Questions Before the Supreme Court of Canada
There were two questions before the Supreme Court of Canada:
(1) What is the appropriate standard of review of the administrative decisions at issue?
(2) Was that standard of review applied properly?
The Supreme Court of Canada’s Decision
- The Appropriate Standard of Review is Reasonableness
Writing for the majority, Jamal J. noted that Vavilov is very clear. There are only six categories where correctness applies as the appropriate standard of review:
- The legislature explicitly prescribes the standard of review as correctness
- When the legislature providers for an appeal from an administrative decision to a court
- A constitutional question
- A general question of law with central importance to the legal system as a whole
- Questions related to the jurisdictional boundaries between two or more administrative bodies
- When courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute.
Jamal J. held that none of the above six categories applied to the instant case, thus the appropriate standard of review was reasonableness.
Although the proper interpretation of section 34(1)(3) of the IRPA is important for the affected persons and the proper administration of the IRPA, it is not so broad so as to affect the legal system or administration of justice as a whole. It was not an interpretation that has legal implications for multiple statutes or other institutions of government.
The Court also noted that the Federal certifying an issue as a serious question of general importance under section s. 74(d) does not affect the standard of review to be applied by the Federal Court on an application for judicial review. Certifying a question does not mean that reasonableness is ousted for correctness. Certification of a question does not signal that the legislature intended for appellate courts to apply a correctness review. The certified question procedure is simply a gatekeeping role requiring a matter met a threshold of importance to merit an appeal to the Federal Court of Appeal. The Court of Appeal’s task is not altered when it hears appeals from first instance judicial review decisions.
- The Federal Court of Appeal Did not Apply the Correct Standard of Review
The Supreme Court of Canada held that the Federal Court of Appeal, which had the benefit of Vavilov erred when it grafted onto Vavilov an extra step of conducting a preliminary analysis of the text, context, and purpose of the legislation to understand the “lay of the land” before examining the administrative decisions. This preliminary step was inconsistent with Vavilov. In accordance with Vavilov, a reviewing court must start its analysis with the reasons of the administrative decision maker. A reviewing court starting with its own perception of the merits may lead the court to slip into correctness review.
For the case at bar, the Jamal J. held that the administrative decisions under review did not reasonably interpret s. 34(1)(e) of the IRPA.
Jamal J. noted that the relevant legal constraints point overwhelmingly to only one reasonable interpretation of s. 34(1)(e) — the provision requires a nexus to national security or the security of Canada. Section 34(1)(e) can be invoked to render a person inadmissible only when their “acts of violence that would or might endanger the lives or safety of persons in Canada” have a nexus with national security or the security of Canada. The broad interpretation applied by the Immigration Appeal Division and the Federal Court of Appeal, were therefore, unreasonable.
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