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A triumvirate of restrictiveness gone

In its recent decision in Kanthasamy v. Canada (Citizenship and Immigration), the Supreme Court of Canada has altered the landscape of humanitarian decision-making in immigration law.

For years, immigration officers have been squeezing out the compassion in the Humanitarian and Compassionate Considerations program. Instead, the focus became fault, work skills, savings, and the unrealistic expectation that a return home would require only minor adjustments. This focus arose because of three adjectives set in stone by Canada Immigration to “guide” officers in assessing hardship.

Officers were told to ask whether the hardship of an applicant amounted to unusual, undeserved, or disproportionate. With these standards, the discretion to exercise compassion became an assessment of fault (undeserved), exceptionality (unusual), and extremes (disproportionate). This was never the intention of Parliament, at least when the program started, and, more to the point, constituted an often unreachable standard not found in the law.

Justice Rosalie Abella, for the majority in a 5-2 decision, held that in rigidly adhering to this triumvirate of adjectives, immigration officers fettered their discretion by treating them as mandatory requirements limiting the equitable humanitarian and compassionate discretion in s. 25 of the Immigration and Refugee Protection Act.

These requirements were too rigid, too high, and focused the attention of officers through a restrictive lens. Compassion requires more.

Fine words. But what now? To ascertain exactly what is required on a s. 25 application and to understand the full breadth of the impact of the majority decision, the minority dissent in Kanthasamy, written by Justice Michael Moldaver, is instructive. He tells us in no uncertain terms what Abella and the majority meant in its decision, even if the majority is not so clear about it.

Moldaver agrees with much of what Abella says about the need for flexibility in considering an exercise of compassion and that the use of hardship alone as a means of assessing compassion is too restrictive. However, he then parts ways with his colleague on the correct approach to the exercise and in so doing, tells us what Abella has done in a way that clarifies and enriches her decision.

He says that the majority has imported into the s. 25 analysis the Chirwa test of compassion relied on by the Immigration Appeal Division. The Chirwa test is based on equitable principles framing the idea of compassion as the central feature.

It is stated as follows: Humanitarian and compassionate factors refers to “those facts, established by the evidence, which would excite in a reasonable man in a civilized community a desire to relieve the misfortunes of another — so long as these misfortunes warrant the granting of special relief from the effect of the Immigration Act.”

The IAD has used this test since 1970 and a large body of case law has developed around it, case law now applicable to s. 25 determinations. Although the triumvirate of hardship adjectives continues to be available to officers in their assessments, their role is now diminished to the outlands of consideration and will forever after be tempered by the true purpose of a s. 25 application, which is to relieve the misfortunes of another.

In applying this new standard, Abella determined that when the immigration officer considered, as a factor against an applicant, the fact that he could receive treatment for post-traumatic stress disorder in his country when deportation was exacerbating his condition as being an unreasonable finding. She also considered the rejection of a report from a doctor in Canada regarding the applicant’s mental health because it was based on hearsay and on what the patient had told the doctor as untenable. When are doctors ever present during the events giving rise to the trauma? she queried.

 In respect to both of these factual findings by the immigration officer, a triumvirate of restrictive adjectives had forced his hand to unreasonableness. That hand was meant to be open and welcoming and compassionate. Now it will be.