Canada cannot deport on security grounds unless conduct at issue relates to national security: SCC

National security risk or serious conviction required to deport person who will face persecution

Canada cannot deport on security grounds unless conduct at issue relates to national security: SCC
Aidan Campbell, Erica Olmstead, and Molly Joeck

There is only one reasonable interpretation of a section of the Immigration and Refugee Protection Act that deems a foreign national inadmissible on security grounds for “being a danger to the security of Canada,” the Supreme Court of Canada has found.

In Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, the nine-judge panel unanimously found that for immigration authorities to rule someone inadmissible to Canada under s. 34(1)(e) for engaging in acts of violence, those violent acts must have a “nexus to national security.” While unanimous in the result, the court was split on the applicable standard of review. Justice Suzanne Côté broke with her colleagues, who ruled reasonableness was the appropriate standard, and found that the court should review the Immigration Appeal Division’s decision on a standard of correctness. 

“The ruling affirms and expands on guidance from Canada (Minister of Citizenship and Immigration) v. Vavilov that when Parliament enacts a provision, a reviewing court must consider key relevant constraints through an exercise of statutory interpretation that can be taken to reveal there is only one reasonable interpretation of that provision,” says Erica Olmstead, who acted for one of the appellants.

In Mason v. Canada, she says, one relevant constraint was the significant impact the provision would have on a person: being deported, with only a narrow avenue of relief. Another constraint was the international legal obligation that Canada must not deport a person to persecution unless they present a national security risk or were convicted of a serious offence. The third was “the illogicality in the scheme of the Act” that would otherwise result. “This was that persons could become deportable for reasons Parliament determined were not sufficiently serious to warrant deportation under other another, less severe ‘criminality’ provision,” says Olmstead, a lawyer at Edelmann & Company Law Corporation in Vancouver.

“The part that I think is most important of this decision is the affirmation of what a robust reasonableness analysis can require and how it can point to one conclusion,” she says. “Because that was something that the Federal Court of Appeal had really left the door open on.”

Robert Kincaid, counsel for the other appellant, says the SCC’s ruling restores the practice that has existed for decades, where immigration authorities were not bringing “ordinary criminal conduct” before the tribunal. The decision confirms that Parliament’s intention was that inadmissibility based on the commission of a criminal offence requires a conviction, he says.

The case dealt with two foreign nationals, Earl Mason and Seifeslam Dleiow, who had been charged with several serious crimes involving firearms and intimate partner violence. While Mason’s charges were stayed because of delay, Dleiow pled guilty and received a conditional discharge.

Immigration authorities prepared inadmissibility reports alleging Mason and Dleiow were inadmissible to Canada on security grounds under s. 34(1)(e) of the Immigration and Refugee Protection Act (IRPA). Mason and Dleiow were successful at the Immigration Division, which ruled that being deemed inadmissible under the provision required a threat to the security of Canada. The Immigration Appeal Division (IAD) went the other way, applying a broader sense of security, which included threatening the security of individual Canadians. Following the appeal division’s ruling, the Immigration Division issued a deportation order for Dleiow.

On Mason’s and Dleiow’s judicial review applications, the Federal Court found it was unreasonable to interpret s. 34(1)(e) as applying without a nexus to national security. The result swung the other way again, as the Federal Court of Appeal found that nexus was not required.

Writing for the majority, Justice Mahmud Jamal said both administrative decisions were unreasonable. In Mason’s case, the IAD failed to consider three “significant legal constraints.” These included the potentially broad consequences of the IAD’s interpretation of the provision and a failure to interpret and apply the provision in compliance with the obligation of non-refoulement under article 33(1) of the 1951 Convention Relating to the Status of Refugees, which is expressly directed by s. 3(3)(f) of the IRPA.

the SCC allowed both appeals, set aside the Federal Court of Appeal’s judgment and allowed the judicial review applications, and quashed the administrative decisions.

The decision highlights a gap in the legislation that Parliament may need to address, says Kincaid. There is a legitimate concern in ensuring Canadians are secure from acts of violence that do not engage national security or for which the foreign national has not been convicted, he says.

Kincaid notes that, under s. 33 of the IRPA, the facts that constitute inadmissibility in ss. 34-37 “include facts for which there are reasonable grounds to believe that they have occurred, are occurring, or may occur.” For crimes committed outside of Canada by a foreign national, no conviction is required. What is required is reasonable grounds to believe that the foreign national committed the act, which has an equivalent offence in Canada, he says.

Rebecca Purdy, spokesperson at Canada Border Services Agency (CBSA), says the agency is reviewing the decision. She notes that the CBSA has a legal obligation to remove foreign nationals and permanent residents ruled inadmissible to Canada under the IRPA and who have a removal order in force.

“All individuals who are subject to enforcement action and ordered to be removed from Canada have access to due process before the law, and all removal orders can be challenged,” says Purdy. “This includes an application for judicial review to the Federal Court.”

“Individuals are also entitled to a pre-removal risk assessment by Immigration, Refugees and Citizenship Canada if they feel they may be subject to persecution in the country to which they may be removed.”

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