diff --git "a/data/processed/caselaw.json" "b/data/processed/caselaw.json" new file mode 100644--- /dev/null +++ "b/data/processed/caselaw.json" @@ -0,0 +1,26948 @@ +[ + { + "id": "scc-18078-1", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 1–2", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Chief Justice and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ. — This appeal and its companion cases (see Bell Canada v. Canada (Attorney General), 2019 SCC 66, [2019] 4 S.C.R. 845), provide this Court with an opportunity to re-examine its approach to judicial review of administrative decisions.\n\nIn these reasons, we will address two key aspects of the current administrative law jurisprudence which require reconsideration and clarification. First, we will chart a new course forward for determining the standard of review that applies when a court reviews the merits of an administrative decision. Second, we will provide additional guidance for reviewing courts to follow when conducting reasonableness review. The revised framework will continue to be guided by the principles underlying judicial review that this Court articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190: that judicial review functions to maintain the rule of law while giving effect to legislative intent. We will also affirm the need to develop and strengthen a culture of justification in administrative decision making.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-2", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 3–4", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "We will then address the merits of the case at bar, which relates to an application for judicial review of a decision by the Canadian Registrar of Citizenship concerning Alexander Vavilov, who was born in Canada and whose parents were later revealed to be Russian spies. The Registrar found on the basis of an interpretation of s. 3(2) (a) of the Citizenship Act , R.S.C. 1985, c. C-29 , that Mr. Vavilov was not a Canadian citizen and cancelled his certificate of citizenship under s. 26(3) of the Citizenship Regulations, SOR/93-246. In our view, the standard of review to be applied to the Registrar’s decision is reasonableness, and the Registrar’s decision was unreasonable. We would therefore uphold the Federal Court of Appeal’s decision to quash it, and would dismiss the Minister of Citizenship and Immigration’s appeal. I. Need for Clarification and Simplification of the Law of Judicial Review\n\nOver the past decades, the law relating to judicial review of administrative decisions in Canada has been characterized by continuously evolving jurisprudence and vigorous academic debate. This area of the law concerns matters which are fundamental to our legal and constitutional order, and seeks to navigate the proper relationship between administrative decision makers, the courts and individuals in our society. In parallel with the law, the role of administrative decision making in Canada has also evolved. Today, the administration of countless public bodies and regulatory regimes has been entrusted to statutory delegates with decision-making power. The number, diversity and importance of the matters that come before such delegates has made administrative decision making one of the principal manifestations of state power in the lives of Canadians.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-3", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 5–6", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Given the ubiquity and practical importance of administrative decision making, it is essential that administrative decision makers, those subject to their decisions and courts tasked with reviewing those decisions have clear guidance on how judicial review is to be performed.\n\nIn granting leave to appeal in the case at bar and in its companion cases, this Court’s leave to appeal judgment made clear that it viewed these appeals as an opportunity to consider the law applicable to the judicial review of administrative decisions as addressed in Dunsmuir and subsequent cases. In light of the importance of this issue, the Court appointed two amici curiae, invited the parties to devote a substantial portion of their submissions to the standard of review issue, and granted leave to 27 interveners, comprising 4 attorneys general and numerous organizations representing the breadth of the Canadian administrative law landscape. We have, as a result, received a wealth of helpful submissions on this issue. Despite this Court’s review of the subject in Dunsmuir, some aspects of the law remain challenging. In particular, the submissions presented to the Court have highlighted two aspects of the current framework which need clarification.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-4", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 7", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The first aspect is the analysis for determining the standard of review. It has become clear that Dunsmuir’s promise of simplicity and predictability in this respect has not been fully realized. In Dunsmuir, a majority of the Court merged the standards of “patent unreasonableness” and “reasonableness simpliciter” into a single “reasonableness” standard, thus reducing the number of standards of review from three to two: paras. 34-50. It also sought to simplify the analysis for determining the applicable standard of review: paras. 51-64. Since Dunsmuir, the jurisprudence has evolved to recognize that reasonableness will be the applicable standard for most categories of questions on judicial review, including, presumptively, when a decision maker interprets its enabling statute: see, e.g., Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 55; Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197, at para. 13; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at paras. 26 and 28; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 25; Dunsmuir, at para. 54. The Court has indicated that this presumption may be rebutted by showing the issue on review falls within a category of questions attracting correctness review: see McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 22.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-5", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 7–8", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "It may also be rebutted by showing that the context indicates that the legislature intended the standard of review to be correctness: McLean, at para. 22; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 32; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230 (“CHRC”), at paras. 45-46. However, uncertainty about when the contextual analysis remains appropriate and debate surrounding the scope of the correctness categories have sometimes caused confusion and made the analysis unwieldy: see, e.g., P. Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” (2016), 62 McGill L.J. 527.\n\nIn addition, this analysis has in some respects departed from the theoretical foundations underpinning judicial review. While the application of the reasonableness standard is grounded, in part, in the necessity of avoiding “undue interference” in the face of the legislature’s intention to leave certain questions with administrative bodies rather than with the courts (see Dunsmuir, at para. 27), that standard has come to be routinely applied even where the legislature has provided for a different institutional structure through a statutory appeal mechanism.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-6", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 9–10", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The uncertainty that has followed Dunsmuir has been highlighted by judicial and academic criticism, litigants who have come before this Court, and organizations that represent Canadians who interact with administrative decision makers. These are not light critiques or theoretical challenges. They go to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence. This Court, too, has taken note. In Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, at para. 19, Abella J. expressed the need to “simplify the standard of review labyrinth we currently find ourselves in” and offered suggestions with a view to beginning a necessary conversation on the way forward. It is in this context that the Court decided to grant leave to hear this case and the companion cases jointly.\n\nThis process has led us to conclude that a reconsideration of this Court’s approach is necessary in order to bring greater coherence and predictability to this area of law. We have therefore adopted a revised framework for determining the standard of review where a court reviews the merits of an administrative decision. The analysis begins with a presumption that reasonableness is the applicable standard in all cases. Reviewing courts should derogate from this presumption only where required by a clear indication of legislative intent or by the rule of law.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-7", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 11–12", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The second aspect is the need for better guidance from this Court on the proper application of the reasonableness standard. The Court has heard concerns that reasonableness review is sometimes perceived as advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between “good enough” and “not quite wrong”. These concerns have been echoed by some members of the legal profession, civil society organizations and legal clinics. The Court has an obligation to take these perspectives seriously and to ensure that the framework it adopts accommodates all types of administrative decision making, in areas that range from immigration, prison administration and social security entitlements to labour relations, securities regulation and energy policy.\n\nThese concerns regarding the application of the reasonableness standard speak to the need for this Court to more clearly articulate what that standard entails and how it should be applied in practice. Reasonableness review is methodologically distinct from correctness review. It is informed by the need to respect the legislature’s choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court. In order to fulfill Dunsmuir’s promise to protect “the legality, the reasonableness and the fairness of the administrative process and its outcomes”, reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions: para. 28.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-8", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 13–14", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.\n\nOn the one hand, courts must recognize the legitimacy and authority of administrative decision makers within their proper spheres and adopt an appropriate posture of respect. On the other hand, administrative decision makers must adopt a culture of justification and demonstrate that their exercise of delegated public power can be “justified to citizens in terms of rationality and fairness”: the Rt. Hon. B. McLachlin, “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998), 12 C.J.A.L.P. 171, at p. 174 (emphasis deleted); see also M. Cohen-Eliya and I. Porat, “Proportionality and Justification” (2014), 64 U.T.L.J. 458, at pp. 467-70.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-9", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 15–16", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place. II. Determining the Applicable Standard of Review\n\nIn the following sections, we set out a revised framework for determining the standard of review a court should apply when the merits of an administrative decision are challenged. It starts with a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-10", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 17", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. The general rule of reasonableness review, when coupled with these limited exceptions, offers a comprehensive approach to determining the applicable standard of review. As a result, it is no longer necessary for courts to engage in a “contextual inquiry” (CHRC, at paras. 45-47; see also Dunsmuir, at paras. 62-64; McLean, at para. 22) in order to identify the appropriate standard.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-11", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 18–19", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Before setting out the framework for determining the standard of review in greater detail, we wish to acknowledge that these reasons depart from the Court’s existing jurisprudence on standard of review in certain respects. Any reconsideration such as this can be justified only by compelling circumstances, and we do not take this decision lightly. A decision to adjust course will always require the Court to carefully weigh the impact on legal certainty and predictability against the costs of continuing to follow a flawed approach: see Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 47; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, at paras. 24-27; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at paras. 56-57, 129-31 and 139; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at paras. 43-44; R. v. Bernard, [1988] 2 S.C.R. 833, at pp. 849-50.\n\nOn this point, we recall the observation of Gibbs J. in Queensland v. Commonwealth (1977), 139 C.L.R. 585 (H.C.A.), which this Court endorsed in Craig, at para. 26: No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-12", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 20", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Nonetheless, this Court has in the past revisited precedents that were determined to be unsound in principle, that had proven to be unworkable and unnecessarily complex to apply, or that had attracted significant and valid judicial, academic and other criticism: Craig, at paras. 28-30; Henry, at paras. 45-47; Fraser, at para. 135 (per Rothstein J., concurring in the result); Bernard, at pp. 858-59. Although adhering to the established jurisprudence will generally promote certainty and predictability, in some instances doing so will create or perpetuate uncertainty in the law: Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518, at p. 528; Bernard, at p. 858; R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 778. In such circumstances, “following the prior decision because of stare decisis would be contrary to the underlying value behind that doctrine, namely, clarity and certainty in the law”: Bernard, at p. 858. These considerations apply here.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-13", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 21", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Certain aspects of the current framework are unclear and unduly complex. The practical effect of this lack of clarity is that courts sometimes struggle in conducting the standard of review analysis, and costly debates surrounding the appropriate standard and its application continue to overshadow the review on the merits in many cases, thereby undermining access to justice. The words of Binnie J. in his concurring reasons in Dunsmuir, at para. 133, are still apt: . . . judicial review is burdened with undue cost and delay. Litigants understandably hesitate to go to court to seek redress for a perceived administrative injustice if their lawyers cannot predict with confidence even what standard of review will be applied. . . . If litigants do take the plunge, they may find the court’s attention focussed not on their complaints, or the government’s response, but on lengthy and arcane discussions of something they are told is [the choice of standard analysis]. . . . A victory before the reviewing court may be overturned on appeal because the wrong “standard of review” was selected. A small business denied a licence or a professional person who wants to challenge disciplinary action should be able to seek judicial review without betting the store or the house on the outcome. Regrettably, we find ourselves in a similar position following Dunsmuir. As Karakatsanis J. observed in Edmonton East, at para. 35, “[t]he contextual approach can generate uncertainty and endless litigation concerning the standard of review”. While counsel and courts attempt to work through the complexities of determining the standard of review and its proper application, litigants “still find the merits waiting in the wings for their chance to be seen and reviewed”: Wilson, at para. 25, per Abella J.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-14", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 22–23", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "As noted in CHRC, this Court “has for years attempted to simplify the standard of review analysis in order to ‘get the parties away from arguing about the tests and back to arguing about the substantive merits of their case’”: para. 27, quoting Alberta Teachers, at para. 36, citing Dunsmuir, at para. 145, per Binnie J. The principled changes set out below seek to promote the values underlying stare decisis and to make the law on the standard of review more certain, coherent and workable going forward. A. Presumption That Reasonableness Is the Applicable Standard\n\nWhere a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decision other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-15", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 24", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Parliament and the provincial legislatures are constitutionally empowered to create administrative bodies and to endow them with broad statutory powers: Dunsmuir, at para. 27. Where a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it. Where a legislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference. However, because judicial review is protected by s. 96 of the Constitution Act, 1867 , legislatures cannot shield administrative decision making from curial scrutiny entirely: Dunsmuir, at para. 31; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, at pp. 236-37; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1090. Nevertheless, respect for these institutional design choices made by the legislature requires a reviewing court to adopt a posture of restraint on review.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-16", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 25–26", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "For years, this Court’s jurisprudence has moved toward a recognition that the reasonableness standard should be the starting point for a court’s review of an administrative decision. Indeed, a presumption of reasonableness review is already a well-established feature of the standard of review analysis in cases in which administrative decision makers interpret their home statutes: see Alberta Teachers, at para. 30; Saguenay, at para. 46; Edmonton East, at para. 22. In our view, it is now appropriate to hold that whenever a court reviews an administrative decision, it should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. While this presumption applies to the administrative decision maker’s interpretation of its enabling statute, the presumption also applies more broadly to other aspects of its decision.\n\nBefore turning to an explanation of how the presumption of reasonableness review may be rebutted, we believe it is desirable to clarify one aspect of the conceptual basis for this presumption. Since Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 (“C.U.P.E.”), the central rationale for applying a deferential standard of review in administrative law has been a respect for the legislature’s institutional design choice to delegate certain matters to non-judicial decision makers through statute: C.U.P.E., at pp. 235-36. However, this Court has subsequently identified a number of other justifications for applying the reasonableness standard, some of which have taken on influential roles in the standard of review analysis at various times.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-17", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 27", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In particular, the Court has described one rationale for applying the reasonableness standard as being the relative expertise of administrative decision makers with respect to the questions before them: see, e.g., C.U.P.E., at p. 236; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paras. 32-35; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at pp. 591-92; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paras. 50-53; Dunsmuir, at para. 49, quoting D. J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93; see also Dunsmuir, at para. 68. However, this Court’s jurisprudence has sometimes been deeply divided on the question of what expertise entails in the administrative context, how it should be assessed and how it should inform the standard of review analysis: see, e.g., Khosa, at paras. 23-25, per Binnie J. for the majority, compared to paras. 93-96, per Rothstein J., concurring in the result; Edmonton East, at para. 33, per Karakatsanis J. for the majority, compared to paras. 81-86, per Côté and Brown JJ., dissenting. In the era of what was known as the “pragmatic and functional” approach, which was first set out in Bibeault, a decision maker’s expertise relative to that of the reviewing court was one of the key contextual factors said to indicate legislative intent with respect to the standard of review, but the decision maker was not presumed to have relative expertise.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-18", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 27–28", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Instead, whether a decision maker had greater expertise than the reviewing court was assessed in relation to the specific question at issue and on the basis of a contextual analysis that could incorporate factors such as the qualification of an administrative body’s members, their experience in a particular area and their involvement in policy making: see, e.g., Pezim, at pp. 591-92; Southam, at paras. 50-53; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at paras. 28-29; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100, at paras. 28-32; Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 50.\n\nUnfortunately, this contextual analysis proved to be unwieldy and offered limited practical guidance for courts attempting to assess an administrative decision maker’s relative expertise. More recently, the dominant approach in this Court has been to accept that expertise simply inheres in an administrative body by virtue of the specialized function designated for it by the legislature: Edmonton East, at para. 33. However, if administrative decision makers are understood to possess specialized expertise on all questions that come before them, the concept of expertise ceases to assist a reviewing court in attempting to distinguish questions for which applying the reasonableness standard is appropriate from those for which it is not.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-19", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 29", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Of course, the fact that the specialized role of administrative decision makers lends itself to the development of expertise and institutional experience is not the only reason that a legislature may choose to delegate decision-making authority. Over the years, the Court has pointed to a number of other compelling rationales for the legislature to delegate the administration of a statutory scheme to a particular administrative decision maker. These rationales have included the decision maker’s proximity and responsiveness to stakeholders, ability to render decisions promptly, flexibly and efficiently, and ability to provide simplified and streamlined proceedings intended to promote access to justice.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-20", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 30", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "While specialized expertise and these other rationales may all be reasons for a legislature to delegate decision-making authority, a reviewing court need not evaluate which of these rationales apply in the case of a particular decision maker in order to determine the standard of review. Instead, in our view, it is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review. The Court has in fact recognized this basis for applying the reasonableness standard to administrative decisions in the past. In Khosa, for example, the majority understood Dunsmuir to stand for the proposition that “with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision had been allocated to an administrative decision-maker rather than to the courts”: para. 25. More recently, in Edmonton East, Karakatsanis J. explained that a presumption of reasonableness review “respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts”: para. 22. And in CHRC, Gascon J. explained that “the fact that the legislature has allocated authority to a decision maker other than the courts is itself an indication that the legislature intended deferential review”: para. 50. In other words, respect for this institutional design choice and the democratic principle, as well as the need for courts to avoid “undue interference” with the administrative decision maker’s discharge of its functions, is what justifies the presumptive application of the reasonableness standard: Dunsmuir, at para. 27.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-21", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 31–32", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "We wish to emphasize that because these reasons adopt a presumption of reasonableness as the starting point, expertise is no longer relevant to a determination of the standard of review as it was in the contextual analysis. However, we are not doing away with the role of expertise in administrative decision making. This consideration is simply folded into the new starting point and, as explained below, expertise remains a relevant consideration in conducting reasonableness review.\n\nThat being said, our starting position that the applicable standard of review is reasonableness is not incompatible with the rule of law. However, because this approach is grounded in respect for legislative choice, it also requires courts to give effect to clear legislative direction that a different standard was intended. Similarly, a reviewing court must be prepared to derogate from the presumption of reasonableness review where respect for the rule of law requires a singular, determinate and final answer to the question before it. Each of these situations will be discussed in turn below. B. Derogation From the Presumption of Reasonableness Review on the Basis of Legislative Intent", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-22", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 33", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court has described respect for legislative intent as the “polar star” of judicial review: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 149. This description remains apt. The presumption of reasonableness review discussed above is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts. It follows that this presumption will be rebutted where a legislature has indicated that a different standard should apply. The legislature can do so in two ways. First, it may explicitly prescribe through statute what standard courts should apply when reviewing decisions of a particular administrative decision maker. Second, it may direct that derogation from the presumption of reasonableness review is appropriate by providing for a statutory appeal mechanism from an administrative decision maker to a court, thereby signalling the application of appellate standards. (1) Legislated Standards of Review", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-23", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 34–35", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Any framework rooted in legislative intent must, to the extent possible, respect clear statutory language that prescribes the applicable standard of review. This Court has consistently affirmed that legislated standards of review should be given effect: see, e.g., R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 31-32; Khosa, at paras. 18-19; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at para. 20; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, at para. 55; McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, [2014] 2 S.C.R. 108, at para. 16; British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25, [2016] 1 S.C.R. 587, at paras. 8 and 29; British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. 795, at para. 28.\n\nIt follows that where a legislature has indicated that courts are to apply the standard of correctness in reviewing certain questions, that standard must be applied. In British Columbia, the legislature has established the applicable standard of review for many tribunals by reference to the Administrative Tribunals Act, S.B.C. 2004, c. 45: see ss. 58 and 59. For example, it has provided that the standard of review applicable to decisions on questions of statutory interpretation by the B.C. Human Rights Tribunal is to be correctness: ibid., s. 59(1); Human Rights Code, R.S.B.C. 1996, c. 210, s. 32. We continue to be of the view that where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law. (2) Statutory Appeal Mechanisms", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-24", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 36", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "We have reaffirmed that, to the extent possible, the standard of review analysis requires courts to give effect to the legislature’s institutional design choices to delegate authority through statute. In our view, this principled position also requires courts to give effect to the legislature’s intent, signalled by the presence of a statutory appeal mechanism from an administrative decision to a court, that the court is to perform an appellate function with respect to that decision. Just as a legislature may, within constitutional limits, insulate administrative decisions from judicial interference, it may also choose to establish a regime “which does not exclude the courts but rather makes them part of the enforcement machinery”: Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, at p. 195. Where a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis. This expressed intention necessarily rebuts the blanket presumption of reasonableness review, which is premised on giving effect to a legislature’s decision to leave certain issues with a body other than a court. This intention should be given effect. As noted by the intervener Attorney General of Quebec in her factum, [translation] “[t]he requirement of deference must not sterilize such an appeal mechanism to the point that it changes the nature of the decision-making process the legislature intended to put in place”: para. 2.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-25", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 37–38", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37. Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute.\n\nWe acknowledge that giving effect to statutory appeal mechanisms in this way departs from the Court’s recent jurisprudence. However, after careful consideration, we are of the view that this shift is necessary in order to bring coherence and conceptual balance to the standard of review analysis and is justified by a weighing of the values of certainty and correctness: Craig, at para. 27. Our conclusion is based on the following considerations.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-26", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 39", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "First, there has been significant judicial and academic criticism of this Court’s recent approach to statutory appeal rights: see, e.g., Y.-M. Morissette, “What is a ‘reasonable decision’?” (2018), 31 C.J.A.L.P. 225, at p. 244; the Hon. J. T. Robertson, Administrative Deference: The Canadian Doctrine that Continues to Disappoint (April 18, 2018) (online), at p. 8; the Hon. D. Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016), 42 Queen’s L.J. 27, at p. 33; Daly, at pp. 541-42; Québec (Procureure générale) v. Montréal (Ville), 2016 QCCA 2108, 17 Admin. L.R. (6th) 328, at paras. 36-46; Bell Canada v. 7262591 Canada Ltd., 2018 FCA 174, 428 D.L.R. (4th) 311, at paras. 190-92, per Nadon J.A., concurring, and at paras. 66 and 69-72, per Rennie J.A., dissenting; Garneau Community League v. Edmonton (City), 2017 ABCA 374, 60 Alta. L.R. (6th) 1, at paras. 91 and 93-95, per Slatter J.A., concurring; Nova Scotia (Attorney General) v. S&D Smith Central Supplies Limited, 2019 NSCA 22, at paras. 250, 255‑64 and 274‑302 (CanLII), per Beveridge J.A., dissenting; Atlantic Mining NS Corp. (D.D.V. Gold Limited) v. Oakley, 2019 NSCA 14, at paras. 9-14 (CanLII). These critiques seize on the inconsistency inherent in a standard of review framework based on legislative intent that otherwise declines to give meaning to an express statutory right of appeal. This criticism observes that legislative choice is not one-dimensional; rather, it pulls in two directions. While a legislative choice to delegate to an administrative decision maker grounds a presumption of reasonableness on the one hand, a legislative choice to enact a statutory right of appeal signals an intention to ascribe an appellate role to reviewing courts on the other hand.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-27", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 40", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court has in the past held that the existence of significant and valid judicial, academic and other criticism of its jurisprudence may justify reconsideration of a precedent: Craig, at para. 29; R. v. Robinson, [1996] 1 S.C.R. 683, at paras. 35-41. This consideration applies in the instant case. In particular, the suggestion that the recent treatment of statutory rights of appeal represents a departure from the conceptual basis underpinning the standard of review framework is itself a compelling reason to re-examine the current approach: Khosa, at para. 87, per Rothstein J., concurring in the result.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-28", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 41", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, there is no satisfactory justification for the recent trend in this Court’s jurisprudence to give no effect to statutory rights of appeal in the standard of review analysis absent exceptional wording: see Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161, at paras. 35-39. Indeed, this approach is itself a departure from earlier jurisprudence: the Hon. J. T. Robertson, “Judicial Deference to Administrative Tribunals: A Guide to 60 Years of Supreme Court Jurisprudence” (2014), 66 S.C.L.R. (2d) 1, at pp. 91-93. Under the former “pragmatic and functional” approach to determining the applicable standard of review, the existence of a privative clause or a statutory right of appeal was one of four contextual factors that a court would consider in order to determine the standard that the legislature intended to apply to a particular decision. Although a statutory appeal clause was not determinative, it was understood to be a key factor indicating that the legislature intended that a less deferential standard of review be applied: see, e.g., Pezim, at pp. 589-92; British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739, at paras. 28-31; Southam, at paras. 30-32, 46 and 54-55; Pushpanathan, at paras. 30-31; Dr. Q, at para. 27; Mattel, at paras. 26-27; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 21 and 27-29; Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476, at para. 11; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, at para. 7.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-29", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 42–43", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Court did indeed sometimes find that, even in a statutory appeal, a deferential standard of review was warranted for the legal findings of a decision maker that lay at the heart of the decision maker’s expertise: see, e.g., Pezim. In other instances, however, the Court concluded that the existence of a statutory appeal mechanism and the fact that the decision maker did not have greater expertise than a court on the issue being considered indicated that correctness was the appropriate standard, including on matters involving the interpretation of the administrative decision maker’s home statute: see, e.g., Mattel, at paras. 26-33; Barrie Public Utilities, at paras. 9-19; Monsanto, at paras. 6-16.\n\nYet as, in Dunsmuir, Alberta Teachers, Edmonton East and subsequent cases, the standard of review analysis was simplified and shifted from a contextual analysis to an approach more focused on categories, statutory appeal mechanisms ceased to play a role in the analysis. Although this simplification of the standard of review analysis may have been a laudable change, it did not justify ceasing to give any effect to statutory appeal mechanisms. Dunsmuir itself provides little guidance on the rationale for this change. The majority in Dunsmuir was silent on the role of a statutory right of appeal in determining the standard of review, and did not refer to the prior treatment of statutory rights of appeal under the pragmatic and functional approach.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-30", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 44", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "More generally, there is no convincing reason to presume that legislatures mean something entirely different when they use the word “appeal” in an administrative law statute than they do in, for example, a criminal or commercial law context. Accepting that the word “appeal” refers to the same type of procedure in all these contexts also accords with the presumption of consistent expression, according to which the legislature is presumed to use language such that the same words have the same meaning both within a statute and across statutes: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 217. Accepting that the legislature intends an appellate standard of review to be applied when it uses the word “appeal” also helps to explain why many statutes provide for both appeal and judicial review mechanisms in different contexts, thereby indicating two roles for reviewing courts: see, e.g., Federal Courts Act , R.S.C. 1985, c. F-7, ss. 27 and 28 . This offers further support for giving effect to statutory rights of appeal. Our colleagues’ suggestion that our position in this regard “hinges” on what they call a “textualist argument” (at para. 246) is inaccurate.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-31", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 45", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "That there is no principled rationale for ignoring statutory appeal mechanisms becomes obvious when the broader context of those mechanisms is considered. The existence of a limited right of appeal, such as a right of appeal on questions of law or a right of appeal with leave of a court, does not preclude a court from considering other aspects of a decision in a judicial review proceeding. However, if the same standards of review applied regardless of whether a question was covered by the appeal provision, and regardless of whether an individual subject to an administrative decision was granted leave to appeal or applied for judicial review, the appeal provision would be completely redundant — contrary to the well-established principle that the legislature does not speak in vain: Attorney General of Quebec v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831, at p. 838.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-32", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 46", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, and most crucially, the appeals now before the Court have allowed for a comprehensive and considered examination of the standard of review analysis with the goal of remedying the conceptual and practical difficulties that have made this area of the law challenging for litigants and courts alike. To achieve this goal, the revised framework must, for at least two reasons, give effect to statutory appeal mechanisms. The first reason is conceptual. In the past, this Court has looked past an appeal clause primarily when the decision maker possessed greater relative expertise — what it called the “specialization of duties” principle in Pezim, at p. 591. But, as discussed above, the presumption of reasonableness review is no longer premised upon notions of relative expertise. Instead, it is now based on respect for the legislature’s institutional design choice, according to which the authority to make a decision is vested in an administrative decision maker rather than in a court. It would be inconsistent with this conceptual basis for the presumption of reasonableness review to disregard clear indications that the legislature has intentionally chosen a more involved role for the courts. Just as recognizing a presumption of reasonableness review on all questions respects a legislature’s choice to leave some matters first and foremost to an administrative decision maker, departing from that blanket presumption in the context of a statutory appeal respects the legislature’s choice of a more involved role for the courts in supervising administrative decision making.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-33", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 47", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The second reason is that, building on developments in the case law over the past several years, this decision conclusively closes the door on the application of a contextual analysis to determine the applicable standard, and in doing so streamlines and simplifies the standard of review framework. With the elimination of the contextual approach to selecting the standard of review, the need for statutory rights of appeal to play a role becomes clearer. Eliminating the contextual approach means that statutory rights of appeal must now either play no role in administrative law or be accepted as directing a departure from the default position of reasonableness review. The latter must prevail.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-34", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 48", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Our colleagues agree that the time has come to put the contextual approach espoused in Dunsmuir to rest and adopt a presumption of reasonableness review. We part company on the extent to which the departure from the contextual approach requires corresponding modifications to other aspects of the standard of review jurisprudence. We consider that the elimination of the contextual approach represents an incremental yet important adjustment to Canada’s judicial review roots. While it is true that this Court has, in the past several years of jurisprudential development, warned that the contextual approach should be applied “sparingly” (CHRC, at para. 46), it is incorrect to suggest that our jurisprudence was such that the elimination of the contextual analysis was “all but complete”: reasons of Abella and Karakatsanis JJ., at para. 277; see, in this regard, CHRC, at paras. 44-54; Saguenay, at para. 46; Tervita, at para. 35; McLean, at para. 22; Edmonton East, at para. 32; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at para. 15. The contextual analysis was one part of the broader standard of review framework set out in Dunsmuir. A departure from this aspect of the Dunsmuir framework requires a principled rebalancing of the framework as a whole in order to maintain the equilibrium between the roles of administrative decision makers and reviewing courts that is fundamental to administrative law.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-35", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 49–50", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In our view, with the starting position of this presumption of reasonableness review, and in the absence of a searching contextual analysis, legislative intent can only be given effect in this framework if statutory appeal mechanisms, as clear signals of legislative intent with respect to the applicable standard of review, are given effect through the application of appellate standards by reviewing courts. Conversely, in such a framework that is based on a presumption of reasonableness review, contextual factors that courts once looked to as signalling deferential review, such as privative clauses, serve no independent or additional function in identifying the standard of review.\n\nWe wish, at this juncture, to make three points regarding how the presence of a statutory appeal mechanism should inform the choice of standard analysis. First, we note that statutory regimes that provide for parties to appeal to a court from an administrative decision may allow them to do so in all cases (that is, as of right) or only with leave of the court. While the existence of a leave requirement will affect whether a court will hear an appeal from a particular decision, it does not affect the standard to be applied if leave is given and the appeal is heard.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-36", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 51", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, we note that not all legislative provisions that contemplate a court reviewing an administrative decision actually provide a right of appeal. Some provisions simply recognize that all administrative decisions are subject to judicial review and address procedural or other similar aspects of judicial review in a particular context. Since these provisions do not give courts an appellate function, they do not authorize the application of appellate standards. Some examples of such provisions are ss. 18 to 18.2 , 18.4 and 28 of the Federal Courts Act , which confer jurisdiction on the Federal Court and the Federal Court of Appeal to hear and determine applications for judicial review of decisions of federal bodies and grant remedies, and also address procedural aspects of such applications: see Khosa, at para. 34. Another example is the current version of s. 470 of Alberta’s Municipal Government Act, R.S.A. 2000, c. M-26, which does not provide for an appeal to a court, but addresses procedural considerations and consequences that apply “[w]here a decision of an assessment review board is the subject of an application for judicial review”: s. 470(1).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-37", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 52–53", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Third, we would note that statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism. C. The Applicable Standard Is Correctness Where Required by the Rule of Law\n\nIn our view, respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies. The application of the correctness standard for such questions respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary: Dunsmuir, at para. 58.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-38", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 54–56", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or to substitute its own view: Dunsmuir, at para. 50. While it should take the administrative decision maker’s reasoning into account — and indeed, it may find that reasoning persuasive and adopt it — the reviewing court is ultimately empowered to come to its own conclusions on the question. (1) Constitutional Questions\n\nQuestions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982 , and other constitutional matters require a final and determinate answer from the courts. Therefore, the standard of correctness must continue to be applied in reviewing such questions: Dunsmuir, at para. 58; Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322.\n\nThe Constitution — both written and unwritten — dictates the limits of all state action. Legislatures and administrative decision makers are bound by the Constitution and must comply with it. A legislature cannot alter the scope of its own constitutional powers through statute. Nor can it alter the constitutional limits of executive power by delegating authority to an administrative body. In other words, although a legislature may choose what powers it delegates to an administrative body, it cannot delegate powers that it does not constitutionally have. The constitutional authority to act must have determinate, defined and consistent limits, which necessitates the application of the correctness standard.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-39", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 57", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although the amici questioned the approach to the standard of review set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, a reconsideration of that approach is not germane to the issues in this appeal. However, it is important to draw a distinction between cases in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit rights under the Canadian Charter of Rights and Freedoms (as was the case in Doré) and those in which the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter (see, e.g., Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 65). Our jurisprudence holds that an administrative decision maker’s interpretation of the latter issue should be reviewed for correctness, and that jurisprudence is not displaced by these reasons. (2) General Questions of Law of Central Importance to the Legal System as a Whole", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-40", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 58", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Dunsmuir, a majority of the Court held that, in addition to constitutional questions, general questions of law which are “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” will require the application of the correctness standard: para. 60, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62, per LeBel J., concurring. We remain of the view that the rule of law requires courts to have the final word with regard to general questions of law that are “of central importance to the legal system as a whole”. However, a return to first principles reveals that it is not necessary to evaluate the decision maker’s specialized expertise in order to determine whether the correctness standard must be applied in cases involving such questions. As indicated above (at para. 31) of the reasons, the consideration of expertise is folded into the new starting point adopted in these reasons, namely the presumption of reasonableness review.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-41", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 59", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "As the majority of the Court recognized in Dunsmuir, the key underlying rationale for this category of questions is the reality that certain general questions of law “require uniform and consistent answers” as a result of “their impact on the administration of justice as a whole”: Dunsmuir, at para. 60. In these cases, correctness review is necessary to resolve general questions of law that are of “fundamental importance and broad applicability”, with significant legal consequences for the justice system as a whole or for other institutions of government: see Toronto (City), at para. 70; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, at para. 20; Canadian National Railway, at para. 60; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687, at para. 17; Saguenay, at para. 51; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (“Mowat”), at para. 22; Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29, at para. 38. For example, the question in University of Calgary could not be resolved by applying the reasonableness standard, because the decision would have had legal implications for a wide variety of other statutes and because the uniform protection of solicitor-client privilege — at issue in that case — is necessary for the proper functioning of the justice system: University of Calgary, at paras. 19-26. As this shows, the resolution of general questions of law “of central importance to the legal system as a whole” has implications beyond the decision at hand, hence the need for “uniform and consistent answers”.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-42", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 60", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court’s jurisprudence continues to provide important guidance regarding what constitutes a general question of law of central importance to the legal system as a whole. For example, the following general questions of law have been held to be of central importance to the legal system as a whole: when an administrative proceeding will be barred by the doctrines of res judicata and abuse of process (Toronto (City), at para. 15); the scope of the state’s duty of religious neutrality (Saguenay, at para. 49); the appropriateness of limits on solicitor-client privilege (University of Calgary, at para. 20); and the scope of parliamentary privilege (Chagnon, at para. 17). We caution, however, that this jurisprudence must be read carefully, given that expertise is no longer a consideration in identifying such questions: see, e.g., CHRC, at para. 43.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-43", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 61", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "We would stress that the mere fact that a dispute is “of wider public concern” is not sufficient for a question to fall into this category — nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue: see, e.g., Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 66; McLean, at para. 28; Barreau du Québec v. Quebec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488, at para. 18. The case law reveals many examples of questions this Court has concluded are not general questions of law of central importance to the legal system as a whole. These include whether a certain tribunal can grant a particular type of compensation (Mowat, at para. 25); when estoppel may be applied as an arbitral remedy (Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 37-38); the interpretation of a statutory provision prescribing timelines for an investigation (Alberta Teachers, at para. 32); the scope of a management rights clause in a collective agreement (Irving Pulp & Paper, at paras. 7, 15-16 and 66, per Rothstein and Moldaver JJ., dissenting but not on this point); whether a limitation period had been triggered under securities legislation (McLean, at paras. 28-31); whether a party to a confidential contract could bring a complaint under a particular regulatory regime (Canadian National Railway, at para. 60); and the scope of an exception allowing non-advocates to represent a minister in certain proceedings (Barreau du Québec, at paras. 17-18).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-44", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 61–63", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "As these comments and examples indicate, this does not mean that simply because expertise no longer plays a role in the selection of the standard of review, questions of central importance are now transformed into a broad catch-all category for correctness review.\n\nIn short, general questions of law of central importance to the legal system as a whole require a single determinate answer. In cases involving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows. (3) Questions Regarding the Jurisdictional Boundaries Between Two or More Administrative Bodies\n\nFinally, the rule of law requires that the correctness standard be applied in order to resolve questions regarding the jurisdictional boundaries between two or more administrative bodies: Dunsmuir, at para. 61. One such question arose in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, in which the issue was the jurisdiction of a labour arbitrator to consider matters of police discipline and dismissal that were otherwise subject to a comprehensive legislative regime. Similarly, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185, the Court considered a jurisdictional dispute between a labour arbitrator and the Quebec Human Rights Tribunal.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-45", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 64", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Administrative decisions are rarely contested on this basis. Where they are, however, the rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another. The rationale for this category of questions is simple: the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions: see British Columbia Telephone Co., at para. 80, per McLachlin J. (as she then was), concurring. Members of the public must know where to turn in order to resolve a dispute. As with general questions of law of central importance to the legal system as a whole, the application of the correctness standard in these cases safeguards predictability, finality and certainty in the law of administrative decision making. D. A Note Regarding Jurisdictional Questions", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-46", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 65", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "We would cease to recognize jurisdictional questions as a distinct category attracting correctness review. The majority in Dunsmuir held that it was “without question” (para. 50) that the correctness standard must be applied in reviewing jurisdictional questions (also referred to as true questions of jurisdiction or vires). True questions of jurisdiction were said to arise “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”: see Dunsmuir, at para. 59; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3, at para. 32. Since Dunsmuir, however, majorities of this Court have questioned the necessity of this category, struggled to articulate its scope and “expressed serious reservations about whether such questions can be distinguished as a separate category of questions of law”: McLean, at para. 25, referring to Alberta Teachers, at para. 34; Edmonton East, at para. 26; Guérin, at paras. 32-36; CHRC, at paras. 31-41.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-47", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 66", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "As Gascon J. noted in CHRC, the concept of “jurisdiction” in the administrative law context is inherently “slippery”: para. 38. This is because, in theory, any challenge to an administrative decision can be characterized as “jurisdictional” in the sense that it calls into question whether the decision maker had the authority to act as it did: see CHRC, at para. 38; Alberta Teachers, at para. 34; see similarly City of Arlington, Texas v. Federal Communications Commission, 569 U.S. 290 (2013), at p. 299. Although this Court’s jurisprudence contemplates that only a much narrower class of “truly” jurisdictional questions requires correctness review, it has observed that there are no “clear markers” to distinguish such questions from other questions related to the interpretation of an administrative decision maker’s enabling statute: see CHRC, at para. 38. Despite differing views on whether it is possible to demarcate a class of “truly” jurisdictional questions, there is general agreement that “it is often difficult to distinguish between exercises of delegated power that raise truly jurisdictional questions from those entailing an unremarkable application of an enabling statute”: CHRC, at para. 111, per Brown J., concurring. This tension is perhaps clearest in cases where the legislature has delegated broad authority to an administrative decision maker that allows the latter to make regulations in pursuit of the objects of its enabling statute: see, e.g., Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360; West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-48", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 67", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In CHRC, the majority, while noting this inherent difficulty — and the negative impact on litigants of the resulting uncertainty in the law — nonetheless left the question of whether the category of true questions of jurisdiction remains necessary to be determined in a later case. After hearing submissions on this issue and having an adequate opportunity for reflection on this point, we are now in a position to conclude that it is not necessary to maintain this category of correctness review. The arguments that support maintaining this category — in particular the concern that a delegated decision maker should not be free to determine the scope of its own authority — can be addressed adequately by applying the framework for conducting reasonableness review that we describe below. Reasonableness review is both robust and responsive to context. A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority without having to conduct a preliminary assessment regarding whether a particular interpretation raises a “truly” or “narrowly” jurisdictional issue and without having to apply the correctness standard.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-49", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 68", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where the reasonableness standard is applied in reviewing a decision maker’s interpretation of its authority, precise or narrow statutory language will necessarily limit the number of reasonable interpretations open to the decision maker — perhaps limiting it to one. Conversely, where the legislature has afforded a decision maker broad powers in general terms — and has provided no right of appeal to a court — the legislature’s intention that the decision maker have greater leeway in interpreting its enabling statute should be given effect. Without seeking to import the U.S. jurisprudence on this issue wholesale, we find that the following comments of the Supreme Court of the United States in Arlington, at p. 307, are apt: The fox-in-­the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decision-making that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority. Where [the legislature] has estab­lished a clear line, the agency cannot go beyond it; and where [the legislature] has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow. But in rigorously applying the latter rule, a court need not pause to puzzle over whether the interpretive question presented is “jurisdictional”. E.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-50", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 68–69", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Other Circumstances Requiring a Derogation From the Presumption of Reasonableness Review\n\nIn these reasons, we have identified five situations in which a derogation from the presumption of reasonableness review is warranted either on the basis of legislative intent (i.e., legislated standards of review and statutory appeal mechanisms) or because correctness review is required by the rule of law (i.e., constitutional questions, general questions of law of central importance to the legal system as a whole, and questions regarding jurisdictional boundaries between administrative bodies). This framework is the product of careful consideration undertaken following extensive submissions and based on a thorough review of the relevant jurisprudence. We are of the view, at this time, that these reasons address all of the situations in which a reviewing court should derogate from the presumption of reasonableness review. As previously indicated, courts should no longer engage in a contextual inquiry to determine the standard of review or to rebut the presumption of reasonableness review. Letting go of this contextual approach will, we hope, “get the parties away from arguing about the tests and back to arguing about the substantive merits of their case”: Alberta Teachers, at para. 36, quoting Dunsmuir, at para. 145, per Binnie J., concurring.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-51", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 70", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "However, we would not definitively foreclose the possibility that another category could be recognized as requiring a derogation from the presumption of reasonableness review in a future case. But our reluctance to pronounce that the list of exceptions to the application of a reasonableness standard is closed should not be understood as inviting the routine establishment of new categories requiring correctness review. Rather, it is a recognition that it would be unrealistic to declare that we have contemplated every possible set of circumstances in which legislative intent or the rule of law will require a derogation from the presumption of reasonableness review. That being said, the recognition of any new basis for correctness review would be exceptional and would need to be consistent with the framework and the overarching principles set out in these reasons. In other words, any new category warranting a derogation from the presumption of reasonableness review on the basis of legislative intent would require a signal of legislative intent as strong and compelling as those identified in these reasons (i.e., a legislated standard of review or a statutory appeal mechanism). Similarly, the recognition of a new category of questions requiring correctness review that is based on the rule of law would be justified only where failure to apply correctness review would undermine the rule of law and jeopardize the proper functioning of the justice system in a manner analogous to the three situations described in these reasons.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-52", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 71", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The amici curiae suggest that, in addition to the three categories of legal questions identified above, the Court should recognize an additional category of legal questions that would require correctness review on the basis of the rule of law: legal questions regarding which there is persistent discord or internal disagreement within an administrative body leading to legal incoherence. They argue that correctness review is necessary in such situations because the rule of law breaks down where legal inconsistency becomes the norm and the law’s meaning comes to depend on the identity of the decision maker. The amici curiae submit that, where competing reasonable legal interpretations linger over time at the administrative level — such that a statute comes to mean, simultaneously, both “yes” and “no” — the courts must step in to provide a determinative answer to the question without according deference to the administrative decision maker: factum of the amici curiae, at para. 91.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-53", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 72", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "We are not persuaded that the Court should recognize a distinct correctness category for legal questions on which there is persistent discord within an administrative body. In Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, this Court held that “a lack of unanimity [within a tribunal] is the price to pay for the decision-making freedom and independence given to the members of these tribunals”: p. 800; see also Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 28. That said, we agree that the hypothetical scenario suggested by the amici curiae — in which the law’s meaning depends on the identity of the individual decision maker, thereby leading to legal incoherence — is antithetical to the rule of law. In our view, however, the more robust form of reasonableness review set out below, which accounts for the value of consistency and the threat of arbitrariness, is capable, in tandem with internal administrative processes to promote consistency and with legislative oversight (see Domtar, at p. 801), of guarding against threats to the rule of law. Moreover, the precise point at which internal discord on a point of law would be so serious, persistent and unresolvable that the resulting situation would amount to “legal incoherence” and require a court to step in is not obvious. Given these practical difficulties, this Court’s binding jurisprudence and the hypothetical nature of the problem, we decline to recognize such a category in this appeal. III. Performing Reasonableness Review", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-54", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 73–76", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court’s administrative law jurisprudence has historically focused on the analytical framework used to determine the applicable standard of review, while providing relatively little guidance on how to conduct reasonableness review in practice.\n\nIn this section of our reasons, we endeavour to provide that guidance. The approach we set out is one that focuses on justification, offers methodological consistency and reinforces the principle “that reasoned decision-making is the lynchpin of institutional legitimacy”: factum of the amici curiae, at para. 12.\n\nWe pause to note that our colleagues’ approach to reasonableness review is not fundamentally dissimilar to ours. Our colleagues emphasize that reviewing courts should respect administrative decision makers and their specialized expertise, should not ask how they themselves would have resolved an issue and should focus on whether the applicant has demonstrated that the decision is unreasonable: paras. 288, 289 and 291. We agree. As we have stated above, at para. 13, reasonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision makers. Moreover, as explained below, reasonableness review considers all relevant circumstances in order to determine whether the applicant has met their onus. A. Procedural Fairness and Substantive Review\n\nBefore turning to a discussion of the proposed approach to reasonableness review, we pause to acknowledge that the requirements of the duty of procedural fairness in a given case — and in particular whether that duty requires a decision maker to give reasons for its decision — will impact how a court conducts reasonableness review.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-55", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 77", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is well established that, as a matter of procedural fairness, reasons are not required for all administrative decisions. The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 22-23; Moreau-Bérubé, at paras. 74‑75; Dunsmuir, at para. 79. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Baker, at para. 21. In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: Baker, at paras. 23-27; see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, at para. 5. Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal: Baker, at para. 43; D. J. M. Brown and the Hon. J. M. Evans, with the assistance of D.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-56", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 77–79", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), vol. 3, at p. 12-54.\n\nIn the case at bar and in its companion cases, reasons for the administrative decisions at issue were both required and provided. Our discussion of the proper approach to reasonableness review will therefore focus on the circumstances in which reasons for an administrative decision are required and available to the reviewing court.\n\nNotwithstanding the important differences between the administrative context and the judicial context, reasons generally serve many of the same purposes in the former as in the latter: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15 and 22-23. Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power: Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at paras. 12-13. As L’Heureux-Dubé J. noted in Baker, “[t]hose affected may be more likely to feel they were treated fairly and appropriately if reasons are given”: para. 39, citing S. A. de Smith, J. Jowell and Lord Woolf, Judicial Review of Administrative Action (5th ed. 1995), at pp. 459-60. And as Jocelyn Stacey and the Hon. Alice Woolley persuasively write, “public decisions gain their democratic and legal authority through a process of public justification” which includes reasons “that justify [the] decisions [of public decision makers] in light of the constitutional, statutory and common law context in which they operate”: “Can Pragmatism Function in Administrative Law?” (2016), 74 S.C.L.R. (2d) 211, at p. 220.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-57", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 80–81", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The process of drafting reasons also necessarily encourages administrative decision makers to more carefully examine their own thinking and to better articulate their analysis in the process: Baker, at para. 39. This is what Justice Sharpe describes — albeit in the judicial context — as the “discipline of reasons”: Good Judgment: Making Judicial Decisions (2018), at p. 134; see also Sheppard, at para. 23.\n\nReasons facilitate meaningful judicial review by shedding light on the rationale for a decision: Baker, at para. 39. In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the Court reaffirmed that “the purpose of reasons, when they are required, is to demonstrate ‘justification, transparency and intelligibility’”: para. 1, quoting Dunsmuir, at para. 47; see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 126. The starting point for our analysis is therefore that where reasons are required, they are the primary mechanism by which administrative decision makers show that their decisions are reasonable — both to the affected parties and to the reviewing courts. It follows that the provision of reasons for an administrative decision may have implications for its legitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable. B. Reasonableness Review Is Concerned With the Decision-making Process and Its Outcomes", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-58", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 82–83", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Reasonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law: see Dunsmuir, at paras. 27-28 and 48; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 10; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at para. 10.\n\nIt follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: para. 28; see also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-59", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 84–85", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion: see Dunsmuir, at para. 48, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286.\n\nDeveloping an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable. As we will explain in greater detail below, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-60", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 86", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir, at paras. 47-49. In Dunsmuir, this Court explicitly stated that the court conducting a reasonableness review is concerned with “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”: para. 47. Reasonableness, according to Dunsmuir, “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: ibid. In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-61", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 87", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court’s jurisprudence since Dunsmuir should not be understood as having shifted the focus of reasonableness review away from a concern with the reasoning process and toward a nearly exclusive focus on the outcome of the administrative decision under review. Indeed, that a court conducting a reasonableness review properly considers both the outcome of the decision and the reasoning process that led to that outcome was recently reaffirmed in Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6, at para. 12. In that case, although the outcome of the decision at issue may not have been unreasonable in the circumstances, the decision was set aside because the outcome had been arrived at on the basis of an unreasonable chain of analysis. This approach is consistent with the direction in Dunsmuir that judicial review is concerned with both outcome and process. To accept otherwise would undermine, rather than demonstrate respect toward, the institutional role of the administrative decision maker. C. Reasonableness Is a Single Standard That Accounts for Context", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-62", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 88–89", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In any attempt to develop a coherent and unified approach to judicial review, the sheer variety of decisions and decision makers that such an approach must account for poses an inescapable challenge. The administrative decision makers whose decisions may be subject to judicial review include specialized tribunals exercising adjudicative functions, independent regulatory bodies, ministers, front-line decision makers, and more. Their decisions vary in complexity and importance, ranging from the routine to the life-altering. These include matters of “high policy” on the one hand and “pure law” on the other. Such decisions will sometimes involve complex technical considerations. At other times, common sense and ordinary logic will suffice.\n\nDespite this diversity, reasonableness remains a single standard, and elements of a decision’s context do not modulate the standard or the degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case. This is what it means to say that “[r]easonableness is a single standard that takes its colour from the context”: Khosa, at para. 59; Catalyst, at para. 18; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, at para. 44; Wilson, at para. 22, per Abella J.; Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80, at para. 57, per Côté J., dissenting but not on this point; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 53.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-63", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 90–91", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The approach to reasonableness review that we articulate in these reasons accounts for the diversity of administrative decision making by recognizing that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt. The fact that the contextual constraints operating on an administrative decision maker may vary from one decision to another does not pose a problem for the reasonableness standard, because each decision must be both justified by the administrative body and evaluated by reviewing courts in relation to its own particular context. D. Formal Reasons for a Decision Should Be Read in Light of the Record and With Due Sensitivity to the Administrative Setting in Which They Were Given\n\nA reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside: Newfoundland Nurses, at para. 16. The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-64", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 92–93", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice”, and reviewing courts must remain acutely aware of that fact.\n\nAn administrative decision maker may demonstrate through its reasons that a given decision was made by bringing that institutional expertise and experience to bear: see Dunsmuir, at para. 49. In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-65", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 94–95", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Opposing parties may have made concessions that had obviated the need for the decision maker to adjudicate on a particular issue; the decision maker may have followed a well-established line of administrative case law that no party had challenged during the proceedings; or an individual decision maker may have adopted an interpretation set out in a public interpretive policy of the administrative body of which he or she is a member.\n\nThat being said, reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it. It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-66", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 96", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision. Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines, at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion. This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-67", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 97", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Indeed, Newfoundland Nurses is far from holding that a decision maker’s grounds or rationale for a decision is irrelevant. It instead tells us that close attention must be paid to a decision maker’s written reasons and that they must be read holistically and contextually, for the very purpose of understanding the basis on which a decision was made. We agree with the observations of Rennie J. in Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267, at para. 11: Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-68", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 98", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "As for Alberta Teachers, it concerned a very specific and exceptional circumstance in which the reviewing court had exercised its discretion to consider a question of statutory interpretation on judicial review, even though that question had not been raised before the administrative decision maker and, as a result, no reasons had been given on that issue: paras. 22-26. Furthermore, it was agreed that the ultimate decision maker — the Information and Privacy Commissioner’s delegate — had applied a well-established interpretation of the statutory provision in question and that, had she been asked for reasons to justify her interpretation, she would have adopted reasons the Commissioner had given in past decisions. In other words, the reasons of the Commissioner that this Court relied on to find that the administrative decision was reasonable were not merely reasons that could have been offered, in an abstract sense, but reasons that would have been offered had the issue been raised before the decision maker. Far from suggesting in Alberta Teachers that reasonableness review is concerned primarily with outcome, as opposed to rationale, this Court rejected the position that a reviewing court is entitled to “reformulate a tribunal’s decision in a way that casts aside an unreasonable chain of analysis in favour of the court’s own rationale for the result”: para. 54, quoting Petro-Canada v. British Columbia (Workers’ Compensation Board), 2009 BCCA 396, 276 B.C.A.C. 135, at paras. 53 and 56.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-69", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 98–99", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Alberta Teachers, this Court also reaffirmed the importance of giving proper reasons and reiterated that “deference under the reasonableness standard is best given effect when administrative decision makers provide intelligible and transparent justification for their decisions, and when courts ground their review of the decision in the reasons provided”: para. 54. Where a decision maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will generally fail to meet the requisite standard of justification, transparency and intelligibility. E. A Reasonable Decision Is One That Is Both Based on an Internally Coherent Reasoning and Justified in Light of the Legal and Factual Constraints That Bear on the Decision\n\nA reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir, at paras. 47 and 74; Catalyst, at para. 13.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-70", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 100–101", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.\n\nWhat makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. There is, however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. (1) A Reasonable Decision Is Based on an Internally Coherent Reasoning", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-71", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 102", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”: Irving Pulp & Paper, at para. 54, citing Newfoundland Nurses, at para. 14. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Ryan, at para. 55; Southam, at para. 56. Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment”: R. A. Macdonald and D. Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123, at p. 139; see also Gonzalez v. Canada (Minister of Citizenship and Immigration), 2014 FC 750, 27 Imm. L.R. (4th) 151, at paras. 57-59.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-72", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 103–104", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "While, as we indicated earlier (at paras. 89-96), formal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis: see Wright v. Nova Scotia (Human Rights Commission), 2017 NSSC 11, 23 Admin. L.R. (6th) 110; Southam, at para. 56. A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken (see Sangmo v. Canada (Minister of Citizenship and Immigration), 2016 FC 17, at para. 21 (CanLII)) or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point (see Blas v. Canada (Minister of Citizenship and Immigration), 2014 FC 629, 26 Imm. L.R. (4th) 92, at paras. 54-66; Reid v. Criminal Injuries Compensation Board, 2015 ONSC 6578; Lloyd v. Canada (Attorney General), 2016 FCA 115, 2016 D.T.C. 5051; Taman v. Canada (Attorney General), 2017 FCA 1, [2017] 3 F.C.R. 520, at para. 47).\n\nSimilarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”. (2) A Reasonable Decision Is Justified in Light of the Legal and Factual Constraints That Bear on the Decision", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-73", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 105–106", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.\n\nIt is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case. However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely: the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-74", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 107", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "A reviewing court may find that a decision is unreasonable when examined against these contextual considerations. These elements necessarily interact with one another: for example, a reasonable penalty for professional misconduct in a given case must be justified both with respect to the types of penalties prescribed by the relevant legislation and with respect to the nature of the underlying misconduct. (a) Governing Statutory Scheme", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-75", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 108", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision. That administrative decision makers play a role, along with courts, in elaborating the precise content of the administrative schemes they administer should not be taken to mean that administrative decision makers are permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures. Thus, for example, while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply “with the rationale and purview of the statutory scheme under which it is adopted”: Catalyst, at paras. 15 and 25-28; see also Green, at para. 44. As Rand J. noted in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140, “there is no such thing as absolute and untrammelled ‘discretion’”, and any exercise of discretion must accord with the purposes for which it was given: see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at para. 7; Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427, at paras. 32-33; Nor-Man Regional Health Authority, at para. 6. Likewise, a decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203, at paras. 38-40.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-76", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 108–109", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The statutory scheme also informs the acceptable approaches to decision making: for example, where a decision maker is given wide discretion, it would be unreasonable for it to fetter that discretion: see Delta Air Lines, at para. 18.\n\nAs stated above, a proper application of the reasonableness standard is capable of allaying the concern that an administrative decision maker might interpret the scope of its own authority beyond what the legislature intended. As a result, there is no need to maintain a category of “truly” jurisdictional questions that are subject to correctness review. Although a decision maker’s interpretation of its statutory grant of authority is generally entitled to deference, the decision maker must nonetheless properly justify that interpretation. Reasonableness review does not allow administrative decision makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it. Contrary to our colleagues’ concern (at para. 285), this does not reintroduce the concept of “jurisdictional error” into judicial review, but merely identifies one of the obvious and necessary constraints imposed on administrative decision makers.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-77", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 110", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Whether an interpretation is justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority. If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. Other language will fall in the middle of this spectrum. All of this is to say that certain questions relating to the scope of a decision maker’s authority may support more than one interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting. (b) Other Statutory or Common Law", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-78", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 111", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is evident that both statutory and common law will impose constraints on how and what an administrative decision maker can lawfully decide: see Dunsmuir, at paras. 47 and 74. For example, an administrative decision maker interpreting the scope of its regulation-making authority in order to exercise that authority cannot adopt an interpretation that is inconsistent with applicable common law principles regarding the nature of statutory powers: see Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at paras. 45-48. Neither can a body instructed by legislation to determine what tax rate is applicable in accordance with an existing tax system ignore that system and base its determination on a “fictitious” system it has arbitrarily created: Montréal (City), at para. 40. Where a relationship is governed by private law, it would be unreasonable for a decision maker to ignore that law in adjudicating parties’ rights within that relationship: Dunsmuir, at para. 74. Similarly, where the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable decision will generally be one that is consistent with the established understanding of that standard: see, e.g., the discussion of “reasonable grounds to suspect” in Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006, at paras. 93-98.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-79", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 112", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide. An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision had been interpreted. Where, for example, there is a relevant case in which a court considered a statutory provision, it would be unreasonable for an administrative decision maker to interpret or apply the provision without regard to that precedent. The decision maker would have to be able to explain why a different interpretation is preferable by, for example, explaining why the court’s interpretation does not work in the administrative context: M. Biddulph, “Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law” (2018), 56 Alta. L.R. 119, at p. 146. There may be circumstances in which it is quite simply unreasonable for an administrative decision maker to fail to apply or interpret a statutory provision in accordance with a binding precedent. For instance, where an immigration tribunal is required to determine whether an applicant’s act would constitute a criminal offence under Canadian law (see, e.g., Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 35 to 37 ), it would clearly not be reasonable for the tribunal to adopt an interpretation of a criminal law provision that is inconsistent with how Canadian criminal courts have interpreted it.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-80", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 113–114", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "That being said, administrative decision makers will not necessarily be required to apply equitable and common law principles in the same manner as courts in order for their decisions to be reasonable. For example, it may be reasonable for a decision maker to adapt a common law or equitable doctrine to its administrative context: see Nor-Man Regional Health Authority, at paras. 5-6, 44-45, 52, 54 and 60. Conversely, a decision maker that rigidly applies a common law doctrine without adapting it to the relevant administrative context may be acting unreasonably: see Delta Air Lines, at paras. 16-17 and 30. In short, whether an administrative decision maker has acted reasonably in adapting a legal or equitable doctrine involves a highly context-specific determination.\n\nWe would also note that in some administrative decision making contexts, international law will operate as an important constraint on an administrative decision maker. It is well established that legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is “presumed to comply with the values and principles of customary and conventional international law”: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 40. Since Baker, it has also been clear that international treaties and conventions, even where they have not been implemented domestically by statute, can help to inform whether a decision was a reasonable exercise of administrative power: Baker, at paras. 69-71. (c) Principles of Statutory Interpretation", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-81", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 115–116", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Although the general approach to reasonableness review described above applies in such cases, we recognize that it is necessary to provide additional guidance to reviewing courts on this point. This is because reviewing courts are accustomed to resolving questions of statutory interpretation in a context in which the issue is before them at first instance or on appeal, and where they are expected to perform their own independent analysis and come to their own conclusions.\n\nReasonableness review functions differently. Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”: Ryan, at para. 50. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-82", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 117–118", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "A court interpreting a statutory provision does so by applying the “modern principle” of statutory interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the interpretation of statutes and regulations: see, e.g., Interpretation Act , R.S.C. 1985, c. I-21 .\n\nThis Court has adopted the “modern principle” as the proper approach to statutory interpretation, because legislative intent can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context: Sullivan, at pp. 7-8. Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. An approach to reasonableness review that respects legislative intent must therefore assume that those who interpret the law — whether courts or administrative decision makers — will do so in a manner consistent with this principle of interpretation.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-83", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 119–120", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Administrative decision makers are not required to engage in a formalistic statutory interpretation exercise in every case. As discussed above, formal reasons for a decision will not always be necessary and may, where required, take different forms. And even where the interpretive exercise conducted by the administrative decision maker is set out in written reasons, it may look quite different from that of a court. The specialized expertise and experience of administrative decision makers may sometimes lead them to rely, in interpreting a provision, on considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise.\n\nBut whatever form the interpretive exercise takes, the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision. Where, for example, the words used are “precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretive exercise: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. Where the meaning of a statutory provision is disputed in administrative proceedings, the decision maker must demonstrate in its reasons that it was alive to these essential elements.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-84", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 121", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-85", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 122–123", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "It can happen that an administrative decision maker, in interpreting a statutory provision, fails entirely to consider a pertinent aspect of its text, context or purpose. Where such an omission is a minor aspect of the interpretive context, it is not likely to undermine the decision as a whole. It is well established that decision makers are not required “to explicitly address all possible shades of meaning” of a given provision: Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, at para. 3. Just like judges, administrative decision makers may find it unnecessary to dwell on each and every signal of statutory intent in their reasons. In many cases, it may be necessary to touch upon only the most salient aspects of the text, context or purpose. If, however, it is clear that the administrative decision maker may well, had it considered a key element of a statutory provision’s text, context or purpose, have arrived at a different result, its failure to consider that element would be indefensible, and unreasonable in the circumstances. Like other aspects of reasonableness review, omissions are not stand-alone grounds for judicial intervention: the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker.\n\nThere may be other cases in which the administrative decision maker has not explicitly considered the meaning of a relevant provision in its reasons, but the reviewing court is able to discern the interpretation adopted by the decision maker from the record and determine whether that interpretation is reasonable.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-86", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 124", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, even though the task of a court conducting a reasonableness review is not to perform a de novo analysis or to determine the “correct” interpretation of a disputed provision, it may sometimes become clear in the course of reviewing a decision that the interplay of text, context and purpose leaves room for a single reasonable interpretation of the statutory provision, or aspect of the statutory provision, that is at issue: Dunsmuir, at paras. 72-76. One case in which this conclusion was reached was Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52, in which Laskin J.A., after analyzing the reasoning of the administrative decision maker (at paras. 26-61 (CanLII)), held that the decision maker’s interpretation had been unreasonable, and, furthermore, that the factors he had considered in his analysis weighed so overwhelmingly in favour of the opposite interpretation that that was the only reasonable interpretation of the provision: para. 61. As discussed below, it would serve no useful purpose in such a case to remit the interpretative question to the original decision maker. Even so, a court should generally pause before definitively pronouncing upon the interpretation of a provision entrusted to an administrative decision maker. (d) Evidence Before the Decision Maker", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-87", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 125–126", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.\n\nThat being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, at para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: ibid. (e) Submissions of the Parties", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-88", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 127–128", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.\n\nReviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para. 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker, at para. 39. (f) Past Practices and Past Decisions", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-89", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 129", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision‑making freedom and independence” given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law: p. 800. Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-90", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 130", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Fortunately, administrative bodies generally have a range of resources at their disposal to address these types of concerns. Access to past reasons and summaries of past reasons enables multiple individual decision makers within a single organization (such as administrative tribunal members) to learn from each other’s work, and contributes to a harmonized decision-making culture. Institutions also routinely rely on standards, policy directives and internal legal opinions to encourage greater uniformity and guide the work of frontline decision makers. This Court has also held that plenary meetings of a tribunal’s members can be an effective tool to “foster coherence” and “avoid . . . conflicting results”: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, at pp. 324-28. Where disagreement arises within an administrative body about how to appropriately resolve a given issue, that institution may also develop strategies to address that divergence internally and on its own initiative. Of course, consistency can also be encouraged through less formal methods, such as the development of training materials, checklists and templates for the purpose of streamlining and strengthening institutional best practices, provided that these methods do not operate to fetter decision making.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-91", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 131", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable. In this sense, the legitimate expectations of the parties help to determine both whether reasons are required and what those reasons must explain: Baker, at para. 26. We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-92", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 132", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "As discussed above, it has been argued that correctness review would be required where there is “persistent discord” on questions on law in an administrative body’s decisions. While we are not of the view that such a correctness category is required, we would note that reviewing courts have a role to play in managing the risk of persistently discordant or contradictory legal interpretations within an administrative body’s decisions. When evidence of internal disagreement on legal issues has been put before a reviewing court, the court may find it appropriate to telegraph the existence of an issue in its reasons and encourage the use of internal administrative structures to resolve the disagreement. And if internal disagreement continues, it may become increasingly difficult for the administrative body to justify decisions that serve only to preserve the discord. (g) Impact of the Decision on the Affected Individual", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-93", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 133–134", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is well established that individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm: Baker, at para. 25. However, this principle also has implications for how a court conducts reasonableness review. Central to the necessity of adequate justification is the perspective of the individual or party over whom authority is being exercised. Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood.\n\nMoreover, concerns regarding arbitrariness will generally be more acute in cases where the consequences of the decision for the affected party are particularly severe or harsh, and a failure to grapple with such consequences may well be unreasonable. For example, this Court has held that the Immigration Appeal Division should, when exercising its equitable jurisdiction to stay a removal order under the Immigration and Refugee Protection Act , consider the potential foreign hardship a deported person would face: Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-94", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 135–136", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law. F. Review in the Absence of Reasons\n\nWhere the duty of procedural fairness or the legislative scheme mandates that reasons be given to the affected party but none have been given, this failure will generally require the decision to be set aside and the matter remitted to the decision maker: see, e.g., Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at para. 35. Also, where reasons are provided but they fail to provide a transparent and intelligible justification as explained above, the decision will be unreasonable. In many cases, however, neither the duty of procedural fairness nor the statutory scheme will require that formal reasons be given at all: Baker, at para. 43.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-95", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 137", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Admittedly, applying an approach to judicial review that prioritizes the decision maker’s justification for its decisions can be challenging in cases in which formal reasons have not been provided. This will often occur where the decision-making process does not easily lend itself to producing a single set of reasons, for example, where a municipality passes a bylaw or a law society renders a decision by holding a vote: see, e.g., Catalyst; Green; Trinity Western University. However, even in such circumstances, the reasoning process that underlies the decision will not usually be opaque. It is important to recall that a reviewing court must look to the record as a whole to understand the decision, and that in doing so, the court will often uncover a clear rationale for the decision: Baker, at para. 44. For example, as McLachlin C.J. noted in Catalyst, “[t]he reasons for a municipal bylaw are traditionally deduced from the debate, deliberations and the statements of policy that give rise to the bylaw”: para. 29. In that case, not only were “the reasons [in the sense of rationale] for the bylaw . . . clear to everyone”, they had also been laid out in a five-year plan: para. 33. Conversely, even without reasons, it is possible for the record and the context to reveal that a decision was made on the basis of an improper motive or for another impermissible reason, as, for example, in Roncarelli.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-96", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 138–139", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "There will nonetheless be situations in which no reasons have been provided and neither the record nor the larger context sheds light on the basis for the decision. In such a case, the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable. But it is perhaps inevitable that without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process. This does not mean that reasonableness review is less robust in such circumstances, only that it takes a different shape. G. A Note on Remedial Discretion\n\nWhere a court reviews an administrative decision, the question of the appropriate remedy is multi-faceted. It engages considerations that include the reviewing court’s common law or statutory jurisdiction and the great diversity of elements that may influence a court’s decision to exercise its discretion in respect of available remedies. While we do not aim to comprehensively address here the issue of remedies on judicial review, we do wish to briefly address the question of whether a court that quashes an unreasonable decision should exercise its discretion to remit the matter to the decision maker for reconsideration with the benefit of the court’s reasons.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-97", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 140–141", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Where the reasonableness standard is applied in conducting a judicial review, the choice of remedy must be guided by the rationale for applying that standard to begin with, including the recognition by the reviewing court that the legislature has entrusted the matter to the administrative decision maker, and not to the court, to decide: see Delta Air Lines, at para. 31. However, the question of remedy must also be guided by concerns related to the proper administration of the justice system, the need to ensure access to justice and “the goal of expedient and cost-efficient decision making, which often motivates the creation of specialized administrative tribunals in the first place”: Alberta Teachers, at para. 55.\n\nGiving effect to these principles in the remedial context means that where a decision reviewed by applying the reasonableness standard cannot be upheld, it will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision, this time with the benefit of the court’s reasons. In reconsidering its decision, the decision maker may arrive at the same, or a different, outcome: see Delta Air Lines, at paras. 30-31.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-98", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 142", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "However, while courts should, as a general rule, respect the legislature’s intention to entrust the matter to the administrative decision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended: D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167, at paras. 18-19. An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose: see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at pp. 228-30; Renaud v. Quebec (Commission des affaires sociales), [1999] 3 S.C.R. 855; Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772, at para. 161; Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1, at paras. 53-54; Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45, 411 D.L.R. (4th) 175, at paras. 51-56 and 84; Gehl v. Canada (Attorney General), 2017 ONCA 319, 138 O.R. (3d) 52, at paras. 54 and 88.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-99", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 142", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed: see MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6, at paras. 45-51; Alberta Teachers, at para. 55. IV. Role of Prior Jurisprudence", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-100", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 143", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Given that this appeal and its companion cases involve a recalibration of the governing approach to the choice of standard of review analysis and a clarification of the proper application of the reasonableness standard, it will be necessary to briefly address how the existing administrative law jurisprudence should be treated going forward. These reasons set out a holistic revision of the framework for determining the applicable standard of review. A court seeking to determine what standard is appropriate in a case before it should look to these reasons first in order to determine how this general framework applies to that case. Doing so may require the court to resolve subsidiary questions on which past precedents will often continue to provide helpful guidance. Indeed, much of the Court’s jurisprudence, such as cases concerning general questions of law of central importance to the legal system as a whole or those relating to jurisdictional boundaries between two or more administrative bodies, will continue to apply essentially without modification. On other issues, certain cases —including those on the effect of statutory appeal mechanisms, “true” questions of jurisdiction or the former contextual analysis — will necessarily have less precedential force. As for cases that dictated how to conduct reasonableness review, they will often continue to provide insight, but should be used carefully to ensure that their application is aligned in principle with these reasons.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-101", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 144–145", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "This approach strives for future doctrinal stability under the new framework while clarifying the continued relevance of the existing jurisprudence. Where a reviewing court is not certain how these reasons relate to the case before it, it may find it prudent to request submissions from the parties on both the appropriate standard and the application of that standard.\n\nBefore turning to Mr. Vavilov’s case, we pause to note that our colleagues mischaracterize the framework developed in these reasons as being an “encomium” for correctness, and a turn away from the Court’s deferential approach to the point of being a “eulogy” for deference (at paras. 199 and 201). With respect, this is a gross exaggeration. Assertions that these reasons adopt a formalistic, court-centric view of administrative law (at paras. 229 and 240), enable an unconstrained expansion of correctness review (at para. 253) or function as a sort of checklist for “line-by-line” reasonableness review (at para. 284), are counter to the clear wording we use and do not take into consideration the delicate balance that we have accounted for in setting out this framework. V. Mr. Vavilov’s Application for Judicial Review", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-102", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 146–147", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The case at bar involves an application for judicial review of a decision made by the Canadian Registrar of Citizenship on August 15, 2014. The Registrar’s decision concerned Mr. Vavilov, who was born in Canada and whose parents were later revealed to be undercover Russian spies. The Registrar determined that Mr. Vavilov was not a Canadian citizen on the basis of an interpretation of s. 3(2) (a) of the Citizenship Act and cancelled his certificate of citizenship under s. 26(3) of the Citizenship Regulations. We conclude that the standard of review applicable to the Registrar’s decision is reasonableness, and that the Registrar’s decision was unreasonable. We would uphold the decision of the Federal Court of Appeal to quash the Registrar’s decision and would not remit the matter to the Registrar for redetermination. A. Facts\n\nMr. Vavilov was born in Toronto as Alexander Foley on June 3, 1994. At the time of his birth, his parents were posing as Canadians under the assumed names of Tracey Lee Ann Foley and Donald Howard Heathfield. In reality, they were Elena Vavilova and Andrey Bezrukov, two foreign nationals working on a long-term assignment for the Russian foreign intelligence service, the SVR. Their false Canadian identities had been assumed prior to the birth of Mr. Vavilov and of his older brother, Timothy, for purposes of a “deep cover” espionage network under the direction of the SVR. The United States Department of Justice refers to it as the “illegals” program.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-103", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 148–149", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Ms. Vavilova and Mr. Bezrukov were deployed to Canada to establish false personal histories as Western citizens. They worked, ran a business, pursued higher education and, as noted, had two children here. After their second son was born, the family moved to France, and later to the United States. In the United States, Mr. Bezrukov obtained a Masters of Public Administration at Harvard University and worked as a consultant, all while working to collect information on a variety of sensitive national security issues for the SVR. The nature of the undercover work of Ms. Vavilova and Mr. Bezrukov meant that there was no point at which either of them had any publicly acknowledged affiliation with the Russian state, held any official diplomatic or consular status, or had been granted any diplomatic privilege or immunity.\n\nUntil he was about 16 years old, Mr. Vavilov did not know that his parents were not who they claimed to be. He believed that he was a Canadian citizen by birth, lived and identified as a Canadian, held a Canadian passport, learned both official languages and was proud of his heritage. His parents’ true identities became known to him on June 27, 2010, when they were arrested in the United States and charged (along with several other individuals) with conspiracy to act as unregistered agents of a foreign government. On July 8, 2010, they pled guilty, admitted their status as Russian citizens acting on behalf of the Russian state, and were returned to Russia in a “spy swap” the following day. Mr. Vavilov has described the revelation as a traumatic event characterized by disbelief and a crisis of identity.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-104", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 150", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Just prior to his parents’ deportation, Mr. Vavilov left the United States with his brother on a trip that had been planned before their parents’ arrest, going first to Paris, and then to Russia on a tourist visa. In October 2010, Mr. Vavilov unsuccessfully attempted to renew his Canadian passport through the Canadian Embassy in Moscow. Although he submitted to DNA testing and changed his surname from Foley to Vavilov at the behest of passport authorities, his second attempt to obtain a Canadian passport in December 2011 was also unsuccessful. He was then informed that despite his Canadian birth certificate, he would also need to obtain and provide a certificate of Canadian citizenship before he would be issued a passport. Mr. Vavilov applied for that certificate in October 2012, and it was issued to him on January 15, 2013. At that point, he made another passport application through the Canadian Embassy in Buenos Aires, Argentina, and, after a delay, applied for mandamus, a process that was settled out of court in June 2013. The Minister of Citizenship and Immigration undertook to issue a new travel document to Mr. Vavilov by July 19, 2013.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-105", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 151", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "However, Mr. Vavilov never received a passport. Instead, he received a “procedural fairness letter” from the Canadian Registrar of Citizenship dated July 18, 2013 in which the Registrar stated that Mr. Vavilov had not been entitled to a certificate of citizenship, that his certificate of citizenship had been issued in error and that, pursuant to s. 3(2) (a) of the Citizenship Act , he was not a citizen of Canada. Mr. Vavilov was invited to make submissions in response, and he did so. On August 15, 2014, the Registrar formally cancelled Mr. Vavilov’s Canadian citizenship certificate pursuant to s. 26(3) of the Citizenship Regulations. B. Procedural History (1) Registrar’s Decision", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-106", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 152", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In a brief letter sent to Mr. Vavilov on August 15, 2014, the Registrar informed him that she was cancelling his certificate of citizenship pursuant to s. 26(3) of the Citizenship Regulations on the basis that he was not entitled to it. The Registrar summarized her position as follows: (a) Although Mr. Vavilov was born in Toronto, neither of his parents was a citizen of Canada, and neither of them had been lawfully admitted to Canada for permanent residence at the time of his birth. (b) In 2010, Mr. Vavilov’s parents were convicted of “conspiracy to act in the United States as a foreign agent of a foreign government”, and recognized as unofficial agents working as “illegals” for the SVR. (c) As a result, the Registrar believed that, at the time of Mr. Vavilov’s birth, his parents were “employees or representatives of a foreign government”. (d) Accordingly, pursuant to s. 3(2) (a) of the Citizenship Act , Mr. Vavilov had never been a Canadian citizen and had not been entitled to receive the certificate of Canadian citizenship that had been issued to him in 2013. Section 3(2) (a) provides that s. 3(1) (a) of the Citizenship Act (which grants citizenship by birth to persons born in Canada after February 14, 1977) does not apply to an individual if, at the time of the individual’s birth, neither of their parents was a citizen or lawfully admitted to Canada for permanent residence and either parent was “a diplomatic or consular officer or other representative or employee in Canada of a foreign government.”", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-107", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 153–154", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "For these reasons, the Registrar cancelled the certificate and indicated that Mr. Vavilov would no longer be recognized as a Canadian citizen. The Registrar’s letter did not offer any analysis or interpretation of s. 3(2) (a) of the Citizenship Act . However, it appears that in coming to her decision, the Registrar relied on a 12-page report prepared by a junior analyst, which included an interpretation of this key statutory provision.\n\nIn that report, the analyst provided a timeline of the procedural history of Mr. Vavilov’s file, a summary of the investigation into and charges against his parents in the United States, and background information on the SVR’s “illegals” program. The analyst also discussed several provisions of the Citizenship Act , including s. 3(2) (a), and it is this aspect of her report that is most relevant to Mr. Vavilov’s application for judicial review. The analyst’s ultimate conclusion was that the certificate of citizenship issued to Mr. Vavilov in January 2013 was issued in error, as his parents had been “working as employees or representatives of a foreign government (the Russian Federation) during the time they resided in Canada, including at the time of Mr. Vavilov’s birth”, and that “[a]s such, Mr. Vavilov was not entitled to receive a citizenship certificate pursuant to paragraph 3(2) (a) of the Citizenship Act ”: A.R., vol. I, at p. 3. The report was dated June 24, 2014.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-108", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 155–156", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In discussing the relevant legislation, the analyst cited s. 3(1) (a) of the Citizenship Act , which establishes the general rule that persons born in Canada after February 14, 1977 are Canadian citizens. The analyst also referred to an exception to that general rule set out in s. 3(2) of the Citizenship Act, which reads as follows: (2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was (a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government; (b) an employee in the service of a person referred to in paragraph (a); or (c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).\n\nThe analyst noted that s. 3(2)(a) refers both to diplomatic and consular officers and to other representatives or employees of a foreign government. She acknowledged that the term “diplomatic or consular officer” is defined in s. 35(1) of the Interpretation Act and that the definition lists a large number of posts within a foreign mission or consulate. However, the analyst observed that no statutory definition exists for the phrase “other representative or employee in Canada of a foreign government”.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-109", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 157–158", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The analyst compared the wording of s. 3(2)(a) with that of a similar provision in predecessor legislation. That provision, s. 5(3)(b) of the Canadian Citizenship Act, R.S.C. 1970, c. C-19, excluded from citizenship children whose “responsible parent” at the time of birth was: (i) a foreign diplomatic or consular officer or a representative of a foreign government accredited to Her Majesty, (ii) an employee of a foreign government attached to or in the service of a foreign diplomatic mission or consulate in Canada, or (iii) an employee in the service of a person referred to in subparagraph (i).\n\nThe analyst reasoned that because s. 3(2)(a) “makes reference to ‘representatives or employees of a foreign government’, but does not link the representatives or employees to ‘attached to or in the service of a foreign diplomatic mission or consulate in Canada’ (as did the earlier version of the provision), it is reasonable to maintain that this provision intends to encompass individuals not included in the definition of ‘diplomatic and consular staff’”: A.R., vol. I, at p. 7.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-110", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 159–161", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although the analyst acknowledged that “Ms. Vavilova and Mr. Bezrukov, were employed in Canada by a foreign government without the benefits or protections (i.e.: immunity) that accompany diplomatic, consular, or official status positions”, she concluded that they were nonetheless “unofficial employees or representatives” of Russia at the time of Mr. Vavilov’s birth: A.R., vol. I, at p. 13. The exception in s. 3(2) (a) of the Citizenship Act, as she interpreted it, therefore applied to Mr. Vavilov. As a result, the analyst recommended that the Canadian Registrar of Citizenship “recall” Mr. Vavilov’s certificate on the basis that he was not, and had never been, entitled to citizenship: ibid., at p. 14. (2) Federal Court (Bell J.), 2015 FC 960, [2016] 2 F.C.R. 39\n\nMr. Vavilov sought and was granted leave to bring an application for judicial review of the Registrar’s decision in the Federal Court pursuant to s. 22.1 of the Citizenship Act. His application was dismissed.\n\nThe Federal Court rejected Mr. Vavilov’s argument that the Registrar had breached her duty of procedural fairness by failing to disclose the documentation that had prompted the procedural fairness letter. In the Federal Court’s view, the Registrar had provided Mr. Vavilov sufficient information to allow him to meaningfully respond, and had thereby satisfied the requirements of procedural fairness in the circumstances.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-111", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 162–164", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Federal Court also rejected Mr. Vavilov’s challenge to the Registrar’s interpretation of s. 3(2) (a) of the Citizenship Act. Applying the correctness standard, the Federal Court agreed with the Registrar that undercover foreign operatives living in Canada fall within the meaning of the phrase “diplomatic or consular officer or other representative or employee in Canada of a foreign government” in s. 3(2)(a). In the Federal Court’s view, to interpret s. 3(2)(a) in any other way would render the phrase “other representative or employee in Canada of a foreign government” meaningless and would lead to the “absurd result” that “children of a foreign diplomat, registered at an embassy, who conducts spy operations, cannot claim Canadian citizenship by birth in Canada but children of those who enter unlawfully for the very same purpose, become Canadian citizens by birth”: para. 25.\n\nFinally, the Federal Court was satisfied, given the evidence, that the Registrar’s conclusion that Mr. Vavilov’s parents had at the time of his birth been in Canada as part of an undercover operation for the Russian government was reasonable. (3) Federal Court of Appeal (Stratas J.A. with Webb J.A. Concurring; Gleason J.A. Dissenting), 2017 FCA 132, [2018] 3 F.C.R. 75\n\nA majority of the Federal Court of Appeal allowed Mr. Vavilov’s appeal from the Federal Court’s judgment and quashed the Registrar’s decision.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-112", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 165–166", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Court of Appeal unanimously rejected Mr. Vavilov’s argument that he had been denied procedural fairness by the Registrar. In the Court of Appeal’s view, the Registrar had provided Mr. Vavilov sufficient information in the procedural fairness letter to enable him to know the case to meet. Even if Mr. Vavilov had been entitled to more information at the time of that letter, the court indicated that his procedural fairness challenge would nevertheless have failed because he had subsequently obtained that additional information through his own efforts and was able to make meaningful submissions.\n\nThe Court of Appeal was also unanimously of the view that the appropriate standard of review for the Registrar’s interpretation and application of s. 3(2) (a) of the Citizenship Act was reasonableness. It split, however, on the application of that standard to the Registrar’s decision.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-113", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 167", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority of the Court of Appeal concluded that the analyst’s interpretation of s. 3(2)(a), which the Registrar had adopted, was unreasonable and that the Registrar’s decision should be quashed. The analysis relied on by the Registrar on the statutory interpretation issue was confined to a consideration of the text of s. 3(2)(a) and an abbreviated review of its legislative history, which totally disregarded its purpose or context. In the majority’s view, such a “cursory and incomplete approach to statutory interpretation” in a case such as this was indefensible: para. 44. Moreover, when the provision’s purpose and its context were taken into account, the only reasonable conclusion was that the phrase “employee in Canada of a foreign government” in s. 3(2)(a) was meant to apply only to individuals who have been granted diplomatic privileges and immunities under international law. Because it was common ground that neither of Mr. Vavilov’s parents had been granted such privileges or immunities, s. 3(2)(a) did not apply to him. The cancellation of his citizenship certificate on the basis of s. 3(2)(a) therefore could not stand, and Mr. Vavilov was entitled to Canadian citizenship under the Citizenship Act.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-114", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 168–169", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The dissenting judge disagreed, finding that the Registrar’s interpretation of s. 3(2)(a) was reasonable. According to the dissenting judge, the text of that provision admits of at least two rational interpretations: one that includes all employees of a foreign government and one that is restricted to those who have been granted diplomatic privileges and immunities. In the dissenting judge’s view, the former interpretation is not foreclosed by the context or the purpose of the provision. It was thus open to the Registrar to conclude that Mr. Vavilov’s parents fell within the scope of s. 3(2)(a). The dissenting judge would have upheld the Registrar’s decision. C. Analysis (1) Standard of Review\n\nApplying the standard of review analysis set out above leads to the conclusion that the standard to be applied in reviewing the merits of the Registrar’s decision is reasonableness.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-115", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 170–171", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "When a court reviews the merits of an administrative decision, reasonableness is presumed to be the applicable standard of review, and there is no basis for departing from that presumption in this case. The Registrar’s decision has come before the courts by way of judicial review, not by way of a statutory appeal. On this point, we note that ss. 22.1 through 22.4 of the Citizenship Act lay down rules that govern applications for judicial review of decisions made under that Act, one of which, in s. 22.1(1), is that such an application may be made only with leave of the Federal Court. However, none of these provisions allow for a party to bring an appeal from a decision under the Citizenship Act. Given this fact, and given that Parliament has not prescribed the standard to be applied on judicial review of the decision at issue, there is no indication that the legislature intended a standard of review other than reasonableness to apply. The Registrar’s decision does not give rise to any constitutional questions, general questions of law of central importance to the legal system as a whole or questions regarding the jurisdictional boundaries between two or more administrative bodies. As a result, the standard to be applied in reviewing the decision is reasonableness. (2) Review for Reasonableness\n\nThe principal issue before this Court is whether it was reasonable for the Registrar to find that Mr. Vavilov’s parents had been “other representative[s] or employee[s] in Canada of a foreign government” within the meaning of s. 3(2) (a) of the Citizenship Act.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-116", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 172–173", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In our view, it was not. The Registrar failed to justify her interpretation of s. 3(2) (a) of the Citizenship Act in light of the constraints imposed by the text of s. 3 of the Citizenship Act considered as a whole, by other legislation and international treaties that inform the purpose of s. 3, by the jurisprudence on the interpretation of s. 3(2)(a), and by the potential consequences of her interpretation. Each of these elements — viewed individually and cumulatively — strongly supports the conclusion that s. 3(2)(a) was not intended to apply to children of foreign government representatives or employees who have not been granted diplomatic privileges and immunities. Though Mr. Vavilov raised many of these considerations in his submissions in response to the procedural fairness letter, the Registrar failed to address those submissions in her reasons and did not, to justify her interpretation of s. 3(2)(a), do more than conduct a cursory review of the legislative history and conclude that her interpretation was not explicitly precluded by the text of s. 3(2)(a).\n\nOur review of the Registrar’s decision leads us to conclude that it was unreasonable for her to find that the phrase “diplomatic or consular officer or other representative or employee in Canada of a foreign government” applies to individuals who have not been granted diplomatic privileges and immunities in Canada. It is undisputed that Mr. Vavilov’s parents had not been granted such privileges and immunities. No purpose would therefore be served by remitting this matter to the Registrar. (a) Section 3(2) of the Citizenship Act", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-117", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 174", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The analyst justified her conclusion that Mr. Vavilov is not a citizen of Canada by reasoning that his parents were “other representative[s] or employee[s] in Canada of a foreign government” within the meaning of s. 3(2) (a) of the Citizenship Act. Section 3(2)(a) provides that children of “a diplomatic or consular officer or other representative or employee in Canada of a foreign government” are exempt from the general rule in s. 3(1)(a) that individuals born in Canada after February 14, 1977 acquire Canadian citizenship by birth. The analyst observed that although the term “diplomatic or consular officer” is defined in the Interpretation Act and does not apply to individuals like Mr. Vavilov’s parents, the phrase “other representative or employee in Canada of a foreign government” is not so defined, and may apply to them.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-118", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 175", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The analyst’s attempt to give the words “other representative or employee in Canada of a foreign government” a meaning distinct from that of “diplomatic or consular officer” is sensible. It is generally consistent with the principle of statutory interpretation that Parliament intends each word in a statute to have meaning: Sullivan, at p. 211. We accept that if the phrase “other representative or employee in Canada of a foreign government” were considered in isolation, it could apply to a spy working in the service of a foreign government in Canada. However, the analyst failed to address the immediate statutory context of s. 3(2)(a), including the closely related text in s. 3(2)(c): (2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was (a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government; (b) an employee in the service of a person referred to in paragraph (a); or (c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-119", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 176–177", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "As the majority of the Court of Appeal noted (at paras. 61-62), the wording of s. 3(2)(c) provides clear support for the conclusion that all of the persons contemplated by s. 3(2)(a) — including those who are “employee[s] in Canada of a foreign government” — must have been granted diplomatic privileges and immunities in some form. If, as the Registrar concluded, s. 3(2)(a) includes persons who do not benefit from these privileges or immunities, it is difficult to understand how effect could be given to the explicit equivalency requirement articulated in s. 3(2)(c). However, the analyst did not account for this tension in the immediate statutory context of s. 3(2)(a). (b) The Foreign Missions and International Organizations Act and the Treaties It Implements\n\nBefore the Registrar, Mr. Vavilov argued that s. 3(2) of the Citizenship Act must be read in conjunction with both the Foreign Missions and International Organizations Act , S.C. 1991, c. 41 (“FMIOA ”), and the Vienna Convention on Diplomatic Relations, Can. T.S. 1966 No. 29 (“VCDR”). The VCDR and the Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25, are the two leading treaties that extend diplomatic and/or consular privileges and immunities to employees and representatives of foreign governments in diplomatic missions and consular posts. Parliament has implemented the relevant provisions of both conventions by means of s. 3(1) of the FMIOA .", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-120", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 178", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "To begin, we note that Canada affords citizenship in accordance both with the principle of jus soli, the acquisition of citizenship through birth regardless of the parents’ nationality, and with that of jus sanguinis, the acquisition of citizenship by descent, that is through a parent: Citizenship Act, s. 3(1) (a) and (b); see I. Brownlie, Principles of Public International Law (5th ed. 1998), at pp. 391-93. These two principles operate as a backdrop to s. 3 of the Citizenship Act as a whole. It is undisputed that s. 3(2)(a) operates as an exception to these general rules. However, Mr. Vavilov took a narrower view of that exception than did the Registrar. In his submissions to the Registrar, he argued that Parliament intended s. 3(2) of the Citizenship Act to simply mirror the FMIOA and the VCDR, as well as Article II of the Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning Acquisition of Nationality, 500 U.N.T.S. 223, which provides that “[m]embers of the mission not being nationals of the receiving State, and members of their families forming part of their household, shall not, solely by the operation of the law of the receiving State, acquire the nationality of that State”. Mr. Vavilov made the following submission to the Registrar: The purpose in excluding diplomats and their families, including newborn children, from acquiring citizenship in the receiving state relates to the immunities which extend to this group of people. Diplomats and their family members are immune from criminal prosecution and civil liability in the receiving state. As such, they cannot acquire citizenship in the receiving state and also benefit from these immunities. A citizen has duties and responsibilities to its country.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-121", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 178", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Immunity is inconsistent with this principle and so does not apply to citizens. See Article 37 of the Convention. Section 3(2) legislates into Canadian domestic law the above principles and should be narrowly interpreted with these purposes in mind. The term “employee in Canada of a foreign government” must be interpreted to mean an employee of a diplomatic mission, or connected to it, who benefits from the immunities of the Convention. Any other interpretation would lead to absurd results. There is no purpose served in excluding any child born of a person not having a connection to a diplomatic mission in Canada while sojourning here from the principle of Jus soli. (A.R., vol. IV, at pp. 449-50)", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-122", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 179", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Al-Ghamdi v. Canada (Minister of Foreign Affairs and International Trade), 2007 FC 559, 64 Imm. L.R. (3d) 67, a case which was referred to in the analyst’s report and which we will discuss in greater detail below, the Federal Court, at para. 53, quoted a passage by Professor Brownlie on this point: . . . Of particular interest are the special rules relating to the jus soli, appearing as exceptions to that principle, the effect of the exceptions being to remove the cases where its application is clearly unjustifiable. A rule which has very considerable authority stipulated that children born to persons having diplomatic immunity shall not be nationals by birth of the state to which the diplomatic agent concerned is accredited. Thirteen governments stated the exception in the preliminaries of the Hague Codification Conference. In a comment on the relevant article of the Harvard draft on diplomatic privileges and immunities it is stated: ‘This article is believed to be declaratory of an established rule of international law’. The rule receives ample support from legislation of states and expert opinion.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-123", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 179", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Convention on Certain Questions relating to the Conflict of Nationality Laws of 1930 provides in Article 12: ‘Rules of law which confer nationality by reason of birth on the territory of a State shall not apply automatically to children born to persons enjoying diplomatic immunities in the country where the birth occurs.’ In 1961 the United Nations Conference on Diplomatic Intercourse and Immunities adopted an Optional Protocol concerning Acquisition of Nationality, which provided in Article II: ‘Members of the mission not being nationals of the receiving State, and members of their families forming part of their household, shall not, solely by the operation of the law of the receiving State, acquire the nationality of that State’. Some states extend the rule to the children of consuls, and there is some support for this from expert opinion. [Footnotes omitted.] (Brownlie, at pp. 392-93)", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-124", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 180", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Vavilov included relevant excerpts from the parliamentary debate that had preceded the enactment of the Citizenship Act in support of his argument that the very purpose of s. 3(2) of the Citizenship Act was to align Canada’s citizenship rules with these principles of international law. These excerpts describe s. 3(2) as “conform[ing] to international custom” and as having been drafted with the intention of “exclud[ing] children born in Canada to diplomats from becoming Canadian citizens”: Hon. J. Hugh Faulkner, Secretary of State of Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Broadcasting, Films and Assistance to the Arts, Respecting Bill C-20, An Act respecting citizenship, No. 34, 1st Sess., 30th Parl., February 24, 1976, at p. 34:23. The record of that debate also reveals that Parliament took care to avoid the danger that because of how some provisions were written, “a number of other people would be affected such as those working for large foreign corporations”: ibid. Although the analyst discussed the textual difference between s. 3(2) and a similar provision in the former Canadian Citizenship Act, she did not grapple with these other elements of the legislative history, despite the fact that they cast considerable doubt on her conclusions, indicating that s. 3(2) was not intended to affect the status of individuals whose parents have not been granted diplomatic privileges and immunities.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-125", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 181", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In attempting to distinguish the meaning of the phrase “other representative or employee in Canada of a foreign government” from that of the term “diplomatic or consular officer”, the analyst also appeared to overlook the possibility that some individuals who fall into the former category might be granted privileges or immunities despite not being considered “diplomatic or consular officer[s]” under the Interpretation Act . Yet, as the majority of the Federal Court of Appeal pointed out, such individuals do in fact exist: paras. 53-55, citing FMIOA , at ss. 3 and 4 and Sched. II, Articles 1, 41, 43, 49, and 53. In light of Mr. Vavilov’s submissions regarding the purpose of s. 3(2), the failure to consider this possibility is a noticeable omission.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-126", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 182", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is well established that domestic legislation is presumed to comply with Canada’s international obligations, and that it must be interpreted in a manner that reflects the principles of customary and conventional international law: Appulonappa, at para. 40; see also Pushpanathan, at para. 51; Baker, at para. 70; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401, at para. 39; Hape, at paras. 53-54; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at para. 48; India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 38; Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at paras. 31-32. Yet the analyst did not refer to the relevant international law, did not inquire into Parliament’s purpose in enacting s. 3(2) and did not respond to Mr. Vavilov’s submissions on this issue. Nor did she advance any alternate explanation for why Parliament would craft such a provision in the first place. In the face of compelling submissions that the underlying rationale of s. 3(2) was to implement a narrow exception to a general rule in a manner that was consistent with established principles of international law, the analyst and the Registrar chose a different interpretation without offering any reasoned explanation for doing so. (c) Jurisprudence Interpreting Section 3(2) of the Citizenship Act", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-127", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 183", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although the analyst cited three Federal Court decisions on s. 3(2) (a) of the Citizenship Act in a footnote, she dismissed them as being irrelevant on the basis that they related only to “individuals whose parents maintained diplomatic status in Canada at the time of their birth”: A.R., vol. I, at p. 7. But this distinction, while true, does not explain why the reasoning employed in those decisions, which directly concerned the scope, the meaning and the legislative purpose of s. 3(2)(a), was inapplicable in Mr. Vavilov’s case. Had the analyst considered just the three cases cited in her report — Al-Ghamdi; Lee v. Canada (Minister of Citizenship and Immigration), 2008 FC 614, [2009] 1 F.C.R. 204; and Hitti v. Canada (Minister of Citizenship and Immigration), 2007 FC 294, 310 F.T.R. 168 — it would have been evident to her that she needed to grapple with and justify her interpretation in light of the persuasive and comprehensive legal reasoning that supports the position that s. 3(2)(a) was intended to apply only to those individuals whose parents have been granted diplomatic privileges and immunities.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-128", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 184", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Al-Ghamdi, the Federal Court considered the constitutionality of paras. (a) and (c) of s. 3(2) of the Citizenship Act in reviewing a decision in which Passport Canada had refused to issue a passport to a child of a Saudi Arabian diplomat. In its reasons, the court came to a number of conclusions regarding the purpose and scope of s. 3(2), including, at para. 5, that [t]he only individuals covered in paragraphs 3(2) (a) and (c) of the Citizenship Act are children of individuals with diplomatic status. These are individuals who enter Canada under special circumstances and without undergoing any of the normal procedures. Most importantly, while in Canada, they are granted all of the immunities and privileges of diplomats . . . .", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-129", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 185", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The court went on to extensively document the link between the exception to the rule of citizenship by birth set out in s. 3(2) of the Citizenship Act and the rules of international law, the FMIOA and the VCDR: Al-Ghamdi, at paras. 52 et seq. It noted that there is an established rule of international law that children born to parents who enjoy diplomatic immunities are not entitled to automatic citizenship by birth, and that their status in this respect is an exception to the principle of jus soli: Al-Ghamdi, at para. 53, quoting Brownlie, at pp. 391-93. In finding that the exceptions under s. 3(2) to citizenship on the basis of jus soli do not infringe the rights of children of diplomats under s. 15 of the Charter , the court emphasized that all children to whom s. 3(2) applies are entitled to an “extraordinary array of privileges under the Foreign Missions and International Organizations Act ”: Al-Ghamdi, at para. 62. Citing the VCDR, it added that “[i]t is precisely because of the vast array of privileges accorded to diplomats and their families, which are by their very nature inconsistent with the obligations of citizenship, that a person who enjoys diplomatic status cannot acquire citizenship”: para. 63. In its analysis under s. 1 of the Charter , the court found that the choice to deny citizenship to individuals provided for in s. 3(2) is “tightly connected” to a pressing government objective of ensuring “that no citizen is immune from the obligations of citizenship”, such as the obligations to pay taxes and comply with the criminal law: Al-Ghamdi, at paras. 74-75. In the case at bar, the analyst failed entirely to engage with the arguments endorsed by the Federal Court in Al-Ghamdi despite the court’s key finding that s.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-130", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 185–186", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "3(2)(a) applies only to “children born of foreign diplomats or an equivalent”, a conclusion upon which the very constitutionality of the provision turned: Al-Ghamdi, at paras. 3, 9, 27, 28, 56 and 59.\n\nIn Lee, another case cited by the analyst, the Federal Court confirmed the finding in Al-Ghamdi that “[t]he only individuals covered in paragraphs 3(2) (a) and (c) of the Citizenship Act are children of individuals with diplomatic status”: Lee, at para. 77. The court found in Lee that the “functional duties of the applicant’s father” were not relevant to whether or not the applicant was excluded from citizenship pursuant to s. 3(2) (a) of the Citizenship Act: para. 58. Rather, what mattered was only that at the time of the applicant’s birth, his father had been a registered consular official and had held a diplomatic passport and the title of Vice-Consul: paras. 44, 58, 61 and 63.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-131", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 187", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Hitti, the third case cited in the analyst’s report, concerned a decision to confiscate two citizenship certificates on the basis that, under s. 3(2) of the Citizenship Act, their holders had never been entitled to them. In that case, the applicants’ father, a Lebanese citizen, had been employed as an information officer of the League of Arab States in Ottawa. Although the League did not have diplomatic standing at that time, Canada had agreed as a matter of courtesy to extend diplomatic status to officials of the League’s information centre, treating them as “attachés” of their home countries’ embassies: Hitti, at paras. 6 and 9; see also Interpretation Act , s. 35(1) . Mr. Hitti argued he did not, in practice, fulfill diplomatic tasks or act as a representative of Lebanon, but there was nonetheless a record of his being an accredited diplomat, enjoying the benefits of that status and being covered by the VCDR when his children were born: paras. 5 and 8. The Federal Court rejected a submission that Mr. Hitti would have had to perform duties in the service of Lebanon in order for his children to fall within the meaning of s. 3(2)(a), and concluded that “what Mr. Hitti did when he was in the country is not relevant”: para. 32.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-132", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 188–189", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "What can be seen from both Lee and Hitti is that what matters, for the purposes of s. 3(2)(a), is not whether an individual carries out activities in the service of a foreign state while in Canada, but whether, at the relevant time, the individual has been granted diplomatic privileges and immunities. Thus, in addition to the Federal Court’s decision in Al-Ghamdi, the analyst was faced with two cases in which the application of s. 3(2) had turned on the existence of diplomatic status rather than on the “functional duties” or activities of the child’s parents. In these circumstances, it was a significant omission for her to ignore the Federal Court’s reasoning when determining whether the espionage activities of Ms. Vavilova and Mr. Bezrukov were sufficient to ground the application of s. 3(2)(a). (d) Possible Consequences of the Registrar’s Interpretation\n\nWhen asked why the children of individuals referred to in s. 3(2)(a) would be excluded from acquiring citizenship by birth, another analyst involved in Mr. Vavilov’s file (who had also been involved in Mr. Vavilov’s brother’s file) responded as follows: Well, usually the way we use section 3(2)(a) is for — you’re right, for diplomats and that they don’t — because they are not — they are not obliged . . . to the law of Canada and everything, so that’s why their children do not obtain citizenship if they were born in Canada while the person was in Canada under that status. But then there is also this other part of the Act that says other representatives or employees of a foreign government in Canada, that may open the door for other person[s] than diplomats and that’s how we interpreted in this specific case 3(2)(a) but there is no jurisprudence on that . . . . (R.R., transcript, at pp. 87-88)", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-133", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 190–191", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In other words, the officials responsible for these files were aware that s. 3(2)(a) was informed by the principle that individuals subject to the exception are “not obliged . . . to the law of Canada”. They were also aware that the interpretation they had adopted in the case of the Vavilov brothers was a novel one. Although the Registrar knew this, she failed to provide a rationale for this expanded interpretation.\n\nAdditionally, there is no evidence that the Registrar considered the potential consequences of expanding her interpretation of s. 3(2)(a) to include individuals who have not been granted diplomatic privileges and immunities. Citizenship has been described as “the right to have rights”: U.S. Supreme Court Chief Justice Earl Warren, as quoted in A. Brouwer, Statelessness in Canadian Context: A Discussion Paper (July 2003) (online), at p. 2. The importance of citizenship was recognized in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358, in which Iacobucci J., writing for this Court, stated: “I cannot imagine an interest more fundamental to full membership in Canadian society than Canadian citizenship”: para. 68. This was reiterated in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, in which this Court unanimously held that “[f]or some, such as those who might become stateless if deprived of their citizenship, it may be valued as highly as liberty”: para. 108.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-134", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 192", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "It perhaps goes without saying that rules concerning citizenship require a high degree of interpretive consistency in order to shield against a perception of arbitrariness and to ensure conformity with Canada’s international obligations. We can therefore only assume that the Registrar intended that this new interpretation of s. 3(2)(a) would apply to any other individual whose parent is employed by or represents a foreign government at the time of the individual’s birth in Canada but has not been granted diplomatic privileges and immunities. The Registrar’s interpretation would not, after all, limit the application of s. 3(2)(a) to the children of spies — its logic would be equally applicable to a number of other scenarios, including that of a child of a non-citizen worker employed by an embassy as a gardener or cook, or of a child of a business traveller who represents a foreign government-owned corporation. Mr. Vavilov had raised the fact that provisions such as s. 3(2)(a) must be given a narrow interpretation because they deny or potentially take away rights — that of citizenship under s. 3(1) in this case — which otherwise benefit from a liberal and broad interpretation: Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, at p. 307. Yet there is no indication that the Registrar considered the potential harsh consequences of her interpretation for such a large class of individuals, which included Mr. Vavilov, or the question whether, in light of those possible consequences, Parliament would have intended s. 3(2)(a) to apply in this manner.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-135", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 193", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Moreover, we would note that despite following a different legal process, the Registrar’s decision in this case had the same effect as a revocation of citizenship — a process which has been described by scholars as “a kind of ‘political death’” — depriving Mr. Vavilov of his right to vote and the right to enter and remain in Canada: see A. Macklin, “Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien” (2014), 40 Queen’s L.J. 1, at pp. 7-8. While we question whether the Registrar was empowered to unilaterally alter Canada’s position with respect to Mr. Vavilov’s citizenship and recognize that the relationship between the cancellation of a citizenship certificate under s. 26 of the Citizenship Regulations and the revocation of an individual’s citizenship (as set out in s. 10 of the Citizenship Act) is not clear, we leave this issue for another day because it was neither raised nor argued by the parties. D. Conclusion", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-136", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 194", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Multiple legal and factual constraints may bear on a given administrative decision, and these constraints may interact with one another. In some cases, a failure to justify the decision against any one relevant constraint may be sufficient to cause the reviewing court to lose confidence in the reasonableness of the decision. Section 3 of the Citizenship Act considered as a whole, other legislation and international treaties that inform the purpose of s. 3, the jurisprudence cited in the analyst’s report, and the potential consequences of the Registrar’s decision point overwhelmingly to the conclusion that Parliament did not intend s. 3(2)(a) to apply to children of individuals who have not been granted diplomatic privileges and immunities. The Registrar’s failure to justify her decision with respect to these constraints renders her interpretation unreasonable, and we would therefore uphold the Federal Court of Appeal’s decision to quash the Registrar’s decision.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-137", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 195", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "As noted above, we would exercise our discretion not to remit the matter to the Registrar for redetermination. Crucial to our decision is the fact that Mr. Vavilov explicitly raised all of these issues before the Registrar and that the Registrar had an opportunity to consider them but failed to do so. She offered no justification for the interpretation she adopted except for a superficial reading of the provision in question and a comment on part of its legislative history. On the other hand, there is overwhelming support — including in the parliamentary debate, established principles of international law, an established line of jurisprudence and the text of the provision itself — for the conclusion that Parliament did not intend s. 3(2) (a) of the Citizenship Act to apply to children of individuals who have not been granted diplomatic privileges and immunities. That being said, we would stress that it is not our intention to offer a definitive interpretation of s. 3(2)(a) in all respects, nor to foreclose the possibility that multiple reasonable interpretations of other aspects might be available to administrative decision makers. In short, we do not suggest that there is necessarily “one reasonable interpretation” of the provision as a whole. But we agree with the majority of the Court of Appeal that it was not reasonable for the Registrar to interpret s. 3(2)(a) as applying to children of individuals who have not been granted diplomatic privileges and immunities at the time of the children’s birth.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-138", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 196–198", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Given that it is undisputed that Ms. Vavilova and Mr. Bezrukov, as undercover spies, were granted no such privileges, it would serve no purpose to remit the matter in this case to the Registrar. Given that Mr. Vavilov is a person who was born in Canada after February 14, 1977, his status is governed only by the general rule set out in s. 3(1) (a) of the Citizenship Act. He is a Canadian citizen. E. Disposition\n\nThe appeal is dismissed with costs throughout to Mr. Vavilov. The following are the reasons delivered by\n\nAbella and Karakatsanis JJ. — Forty years ago, in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, this Court embarked on a course to recognize the unique and valuable role of administrative decision-makers within the Canadian legal order. Breaking away from the court-centric theories of years past, the Court encouraged judges to show deference when specialized administrative decision-makers provided reasonable answers to legal questions within their mandates. Building on this more mature understanding of administrative law, subsequent decisions of this Court sought to operationalize deference and explain its relationship to core democratic principles. These appeals offered a platform to clarify and refine our administrative law jurisprudence, while remaining faithful to the deferential path it has travelled for four decades.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-139", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 199", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Regrettably, the majority shows our precedents no such fidelity. Presented with an opportunity to steady the ship, the majority instead dramatically reverses course — away from this generation’s deferential approach and back towards a prior generation’s more intrusive one. Rather than confirming a meaningful presumption of deference for administrative decision-makers, as our common law has increasingly done for decades, the majority’s reasons strip away deference from hundreds of administrative actors subject to statutory rights of appeal; rather than following the consistent path of this Court’s jurisprudence in understanding legislative intent as being the intention to leave legal questions within their mandate to specialized decision-makers with expertise, the majority removes expertise from the equation entirely and reformulates legislative intent as an overriding intention to provide — or not provide — appeal routes; and rather than clarifying the role of reasons and how to review them, the majority revives the kind of search for errors that dominated the pre-C.U.P.E. era. In other words, instead of reforming this generation’s evolutionary approach to administrative law, the majority reverses it, taking it back to the formalistic judge-centred approach this Court has spent decades dismantling.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-140", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 200–201", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "We support the majority’s decision to eliminate the vexing contextual factors analysis from the standard of review framework and to abolish the shibboleth category of “true questions of jurisdiction”. These improvements, accompanied by a meaningful presumption of deference for administrative decision-makers, would have simplified our judicial review framework and addressed many of the criticisms levied against our jurisprudence since Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190.\n\nBut the majority goes much further and fundamentally reorients the decades-old relationship between administrative actors and the judiciary, by dramatically expanding the circumstances in which generalist judges will be entitled to substitute their own views for those of specialized decision-makers who apply their mandates on a daily basis. In so doing, the majority advocates a profoundly different philosophy of administrative law than the one which has guided our Court’s jurisprudence for the last four decades. The majority’s reasons are an encomium for correctness and a eulogy for deference. The Evolution of Canadian Administrative Law", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-141", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 202–203", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The modern Canadian state “could not function without the many and varied administrative tribunals that people the legal landscape” (The Rt. Hon. Beverley McLachlin, Administrative Tribunals and the Courts: An Evolutionary Relationship, May 27, 2013 (online)). Parliament and the provincial legislatures have entrusted a broad array of complex social and economic challenges to administrative actors, including regulation of labour relations, welfare programs, food and drug safety, agriculture, property assessments, liquor service and production, infrastructure, the financial markets, foreign investment, professional discipline, insurance, broadcasting, transportation and environmental protection, among many others. Without these administrative decision-makers, “government would be paralyzed, and so would the courts” (Guy Régimbald, Canadian Administrative Law (2nd ed. 2015), at p. 3).\n\nIn exercising their mandates, administrative decision-makers often resolve claims and disputes within their areas of specialization (Gus Van Harten et al., Administrative Law: Cases, Text, and Materials (7th ed. 2015), at p. 13). These claims and disputes vary greatly in scope and subject-matter. Corporate merger requests, professional discipline complaints by dissatisfied clients, requests for property reassessments and applications for welfare benefits, among many other matters, all fall within the purview of the administrative justice system.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-142", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 204", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The administrative decision-makers tasked to resolve these issues come from many different walks of life (Van Harten et al., at p. 15). Some have legal backgrounds, some do not. The diverse pool of decision-makers in the administrative system responds to the diversity of issues that it must resolve. To address this broad range of issues, administrative dispute-resolution processes are generally “[d]esigned to be less cumbersome, less expensive, less formal and less delayed” than their judicial counterparts — but “no less effectiv[e] or credibl[e]” (Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267 (C.A.), at p. 279). In the field of labour relations, for example, Parliament explicitly rejected a court-based system to resolve workplace disputes in favour of a Labour Board, staffed with representatives from management and labour alongside an independent member (Bora Laskin, “Collective Bargaining in Ontario: A New Legislative Approach” (1943), 21 Can. Bar Rev. 684; John A. Willes, The Ontario Labour Court: 1943-1944 (1979); Katherine Munro, “A ‘Unique Experiment’: The Ontario Labour Court, 1943-1944” (2014), 74 Labour 199). Other administrative processes — license renewals, zoning permit issuances and tax reassessments, for example — bear even less resemblance to the traditional judicial model.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-143", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 205", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Courts, through judicial review, monitor the boundaries of administrative decision making. Questions about the standards of judicial review have been an enduring feature of Canadian administrative law. The debate, in recent times, has revolved around “reasonableness” and “correctness”, and determining when each standard applies. On the one hand, “reasonableness” review expects courts to defer to decisions by specialized decision-makers that “are defensible in respect of the facts and law”; on the other, “correctness” review allows courts to substitute their own opinions for those of the initial decision-maker (Dunsmuir, at paras. 47-50). This standard of review debate has profound implications for the extent to which reviewing courts may substitute their views for those of administrative decision-makers. At its core, it is a debate over two distinct philosophies of administrative law.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-144", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 206", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The story of modern Canadian administrative law is the story of a shift away from the court-centric philosophy which denied administrative bodies the authority to interpret or shape the law. This approach found forceful expression in the work of Albert Venn Dicey. For Dicey, the rule of law meant the rule of courts. Dicey developed his philosophy at the end of the 19th century to encourage the House of Lords to restrain the government from implementing ameliorative social and welfare reforms administered by new regulatory agencies. Famously, Dicey asserted that administrative law was anathema to the English legal system (Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (10th ed. 1959), at pp. 334-35). Because, in his view, only the judiciary had the authority to interpret law, there was no reason for a court to defer to legal interpretations proffered by administrative bodies, since their decisions did not constitute “law” (Kevin M. Stack, “Overcoming Dicey in Administrative Law” (2018), 68 U.T.L.J. 293, at p. 294).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-145", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 207", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The canonical example of Dicey’s approach at work is the House of Lords’ decision in Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, the judicial progenitor of “jurisdictional error”. Anisminic entrenched non-deferential judicial review by endorsing a lengthy checklist of “jurisdictional errors” capable of undermining administrative decisions. Lord Reid noted that there were two scenarios in which an administrative decision-maker would lose jurisdiction. The first was narrow and asked whether the legislature had empowered the administrative decision-maker to “enter on the inquiry in question” (p. 171). The second was wider: [T]here are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. [Emphasis added; p. 171.]", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-146", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 208", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The broad “jurisdictional error” approach in Anisminic initially found favour with this Court in cases like Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425, and Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756. These cases “took the position that a definition of jurisdictional error should include any question pertaining to the interpretation of a statute made by an administrative tribunal”, and in each case, “th[e] Court substituted what was, in its opinion, the correct interpretation of the enabling provision of the tribunal’s statute for that of the tribunal” (Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, at p. 650, per Cory J., dissenting, but not on this point). In Metropolitan Life, for example, this Court quashed a labour board’s decision to certify a union, concluding that the Board had “ask[ed] itself the wrong question” and “decided a question which was not remitted to it” (p. 435). In Bell, this Court held that a human rights commission had strayed beyond its jurisdiction by deciding to investigate a complaint of racial discrimination filed against a landlord. The Court held that the Commission had incorrectly interpreted the term “self-contained dwelling uni[t]” found in s. 3 of the Ontario Human Rights Code, 1961-62, S.O. 1961-62, c. 93, and by so doing, had lost jurisdiction to inquire into the complaint of discrimination (pp. 767 and 775).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-147", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 209", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "As these cases illustrate, the Anisminic approach proved easy to manipulate, allowing courts to characterize any question as “jurisdictional” and thereby give themselves latitude to substitute their own view of the appropriate answer without regard for the original decision-maker’s decision or reasoning. The Anisminic era and the “jurisdictional error” approach were and continue to be subject to significant judicial and academic criticism (Public Service Alliance, at p. 650; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1335, per Wilson J., concurring; Beverley McLachlin, P.C., “‘Administrative Law is Not for Sissies’: Finding a Path Through the Thicket” (2016), 29 C.J.A.L.P. 127, at pp. 129-30; Jocelyn Stacey and Alice Woolley, “Can Pragmatism Function in Administrative Law?” (2016), 74 S.C.L.R. (2d) 211, at pp. 215-16; R. A. Macdonald, “Absence of Jurisdiction: A Perspective” (1983), 43 R. du B. 307).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-148", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 210", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In 1979, the Court signaled a turn to a more deferential approach to judicial review with its watershed decision in C.U.P.E. There, the Court challenged the “jurisdictional error” model and planted the seeds of a home-grown approach to administrative law in Canada. In a frequently-cited passage, Dickson J., writing for a unanimous Court, cautioned that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (p. 233; cited in nearly 20 decisions of this Court, including Dunsmuir, at para. 35; Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, at para. 45; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, [2011] 3 S.C.R. 654, at para. 33; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2018] 2 S.C.R. 230, at para. 31). The Court instead endorsed an approach that respected the legislature’s decision to assign legal policy issues in some areas to specialized, non-judicial decision-makers. The Court recognized that legislative language could “bristl[e] with ambiguities” and that the interpretive choices made by administrative tribunals deserved respect from courts, particularly when, as in C.U.P.E., the decision was protected by a privative clause (pp. 230 and 234-36).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-149", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 211–212", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "By championing “curial deference” to administrative bodies, C.U.P.E. embraced “a more sophisticated understanding of the role of administrative tribunals in the modern Canadian state” (National Corn Growers, at p. 1336, per Wilson J., concurring; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, at p. 800). As one scholar has observed: . . . legislatures and courts in . . . Canada have come to settle on the idea that the functional capacities of administrative agencies – their expertise, investment in understanding the practical circumstances at issue, openness to participation, and level of responsiveness to political change – justify not only their law-making powers but also judicial deference to their interpretations and decisions. Law-making and legal interpretation are shared enterprises in the administrative state. [Emphasis added.] (Stack, at p. 310)\n\nIn explaining why courts must sometimes defer to administrative actors, C.U.P.E. embraced two related foundational justifications for Canada’s approach to administrative law — one based on the legislature’s express choice to have an administrative body decide the issues arising from its mandate; and one animated by the recognition that an administrative justice system could offer institutional advantages in relation to proximity, efficiency, and specialized expertise (David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart, ed., The Province of Administrative Law (1997), 279 at p. 304).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-150", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 213–214", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "A new institutional relationship between the courts and administrative actors was thus being forged, based on “an understanding of the role of expertise in the modern administrative state” which “acknowledge[d] that judges are not always in the best position to interpret the law” (The Hon. Frank Iacobucci, “Articulating a Rational Standard of Review Doctrine: A Tribute to John Willis” (2002), 27 Queen’s L.J. 859, at p. 866).\n\nIn subsequent decades, the Court attempted to reconcile the deference urged by C.U.P.E. with the lingering concept of “jurisdictional error”. In U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, the Court introduced the “pragmatic and functional” approach for deciding when a matter was within the jurisdiction of an administrative body. Instead of describing jurisdiction as a preliminary or collateral matter, the Bibeault test directed reviewing courts to consider the wording of the enactment conferring jurisdiction on the administrative body, the purpose of the statute creating the tribunal, the reason for the tribunal’s existence, the area of expertise of its members, and the nature of the question the tribunal had to decide — all to determine whether the legislator “intend[ed] the question to be within the jurisdiction conferred on the tribunal” (p. 1087; see also p. 1088). If so, the tribunal’s decision could only be set aside if it was “patently unreasonable” (p. 1086).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-151", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 215", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although still rooted in a formalistic search for jurisdictional errors, the pragmatic and functional approach recognized that legislatures had assigned courts and administrative decision-makers distinct roles, and that the specialization and expertise of administrative decision-makers deserved deference. In her concurring reasons in National Corn Growers, Wilson J. noted that part of the process of moving away from Dicey’s framework and towards a more sophisticated understanding of the role of administrative tribunals: . . . has involved a growing recognition on the part of courts that they may simply not be as well equipped as administrative tribunals or agencies to deal with issues which Parliament has chosen to regulate through bodies exercising delegated power, e.g., labour relations, telecommunications, financial markets and international economic relations. Careful management of these sectors often requires the use of experts who have accumulated years of experience and a specialized understanding of the activities they supervise. [p. 1336]", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-152", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 216–217", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "By the mid-1990s, the Court had accepted that specialization and the legislative intent to leave issues to administrative decision-makers were inextricable and essential factors in the standard of review analysis. It stressed that “the expertise of the tribunal is of the utmost importance in determining the intention of the legislator with respect to the degree of deference to be shown to a tribunal’s decision . . . [e]ven where the tribunal’s enabling statute provides explicitly for appellate review” (United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at p. 335). Of the factors relevant to setting the standard of review, expertise was held to be “the most important” (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 50).\n\nConsistent with these judgments, this Court invoked the specialized expertise of a securities commission to explain why its decisions were entitled to deference on judicial review even when there was a statutory right of appeal. Writing for a unanimous Court, Iacobucci J. explained that “the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal’s expertise” (Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 591; see also Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722, at pp. 1745-46). Critically, the Court’s willingness to show deference demonstrated that specialization outweighed a statutory appeal as the most significant indicator of legislative intent.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-153", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 218–219", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, the Court reformulated the pragmatic and functional approach, engaging four slightly different factors from those in Bibeault, namely: (1) whether there was a privative clause, or conversely, a right of appeal; (2) the expertise of the decision-maker on the matter in question relative to the reviewing court; (3) the purpose of the statute as a whole, and of the provision in particular; and (4) the nature of the problem, i.e., whether it was a question of law, fact, or mixed law and fact (paras. 29‑37). Instead of using these factors to answer whether a question was jurisdictional, Pushpanathan deployed them to discern how much deference the legislature intended an administrative decision to receive on judicial review. Pushpanathan confirmed three standards of review: patent unreasonableness, reasonableness simpliciter, and correctness (para. 27; see also Southam, at paras. 55‑56).\n\nSignificantly, Pushpanathan did not disturb the finding reaffirmed in Southam that specialized expertise was the most important factor in determining whether a deferential standard applied. Specialized expertise thus remained integral to the calibration of legislative intent, even in the face of statutory rights of appeal (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paras. 21 and 29-34; Cartaway Resources Corp. (Re), [2004] 1 S.C.R. 672, at para. 45; Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, at paras. 88‑92 and 100).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-154", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 220", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Next came Dunsmuir, which sought to simplify the pragmatic and functional analysis while maintaining respect for the specialized expertise of administrative decision-makers. The Court merged the three standards of review into two: reasonableness and correctness. Dunsmuir also wove together the deferential threads running through the Court’s administrative law jurisprudence, setting out a presumption of deferential review for certain categories of questions, including those where the decision-maker had expertise or was interpreting its “home” statute (paras. 53-54, per Bastarache and LeBel JJ., and para. 124, per Binnie J., concurring). Certain categories of issues remained subject to correctness review, including constitutional questions regarding the division of powers, true questions of jurisdiction, questions of law that were both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, and questions about jurisdictional lines between tribunals (paras. 58-61). Where the standard of review had not been satisfactorily determined in the jurisprudence, four contextual factors — the presence or absence of a privative clause, the purpose of the tribunal, the nature of the question at issue and the expertise of the tribunal — remained relevant to the standard of review analysis (para. 64).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-155", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 221", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Notably, Dunsmuir did not mention statutory rights of appeal as one of the contextual factors, and left undisturbed their marginal role in the standard of review analysis. Instead, the Court explicitly affirmed the links between deference, the specialized expertise of administrative decision-makers and legislative intent. Justices LeBel and Bastarache held that “deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system” (para. 49). They noted that “in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (para. 49, citing David J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-156", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 222", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Post-Dunsmuir, this Court continued to stress that specialized expertise is the basis for making administrative decision-makers, rather than the courts, the appropriate forum to decide issues falling within their mandates (see Khosa, at para. 25; R. v. Conway, [2010] 1 S.C.R. 765, at para. 53; McLean v. British Columbia (Securities Commission), [2013] 3 S.C.R. 895, at paras. 30-33). Drawing on the concept of specialized expertise, the Court’s post-Dunsmuir cases expressly confirmed a presumption of reasonableness review for an administrative decision-maker’s interpretation of its home or closely-related statutes (see Alberta Teachers’ Association, at paras. 39-41). As Gascon J. explained in Mouvement laïque québécois v. Saguenay (City), [2015] 2 S.C.R. 3, at para. 46: Deference is in order where the Tribunal acts within its specialized area of expertise . . . (Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at paras. 166-68; Mowat, at para. 24). In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 30, 34 and 39, the Court noted that, on judicial review of a decision of a specialized administrative tribunal interpreting and applying its enabling statute, it should be presumed that the standard of review is reasonableness (Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 55; Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197 (“NGC”), at para. 13; Khosa, at para. 25; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at paras. 26 and 28; Dunsmuir, at para. 54).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-157", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 223–224", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "And in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., [2016] 2 S.C.R. 293, the majority recognized: The presumption of reasonableness is grounded in the legislature’s choice to give a specialized tribunal responsibility for administering the statutory provisions, and the expertise of the tribunal in so doing. Expertise arises from the specialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme they administer . . . . [E]xpertise is something that inheres in a tribunal itself as an institution: “. . . at an institutional level, adjudicators . . . can be presumed to hold relative expertise in the interpretation of the legislation that gives them their mandate, as well as related legislation that they might often encounter in the course of their functions.” [Citation omitted; para. 33.]\n\nThe presumption of deference, therefore, operationalized the Court’s longstanding jurisprudential acceptance of the “specialized expertise” principle in a workable manner, continuing the deferential path Dickson J. first laid out in C.U.P.E.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-158", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 225", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "As for statutory rights of appeal, they continued to be seen as either an irrelevant factor in the standard of review analysis or one that yielded to specialized expertise. So firmly entrenched was this principle that in cases like Bell Canada v. Bell Aliant Regional Communications, [2009] 2 S.C.R. 764, Smith v. Alliance Pipeline Ltd., [2011] 1 S.C.R. 160, ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), [2015] 3 S.C.R. 219, and Canada (Attorney General) v. Igloo Vikski Inc., [2016] 2 S.C.R. 80, the Court applied the reasonableness standard without even referring to the presence of an appeal clause. When appeal clauses were discussed, the Court consistently confirmed that they did not oust the application of judicial review principles.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-159", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 226–227", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Khosa, Binnie J. explicitly endorsed Pezim and rejected “the idea that in the absence of express statutory language . . . a reviewing court is ‘to apply a correctness standard as it does in the regular appellate context’” (para. 26). This reasoning was followed in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2011] 3 S.C.R. 471 (“Mowat”), where the Court confirmed that “care should be taken not to conflate” judicial and appellate review (para. 30; see also para. 31). In McLean, decided two years after Mowat, the majority cited Pezim and other cases for the proposition that “general administrative law principles still apply” on a statutory appeal (see para. 21, fn. 2). Similarly, in Mouvement laïque, Gascon J. affirmed that [w]here a court reviews a decision of a specialized administrative tribunal, the standard of review must be determined on the basis of administrative law principles. This is true regardless of whether the review is conducted in the context of an application for judicial review or of a statutory appeal . . . . [para. 38]\n\nIn Edmonton East, the Court considered — and again rejected — the argument that statutory appeals should form a new category of correctness review. As the majority noted, “recognizing issues arising on statutory appeals as a new category to which the correctness standard applies — as the Court of Appeal did in this case — would go against strong jurisprudence from this Court” (para. 28). Even the dissenting judges in Edmonton East, although of the view that the wording of the relevant statutory appeal clause and legislative scheme pointed to the correctness standard, nonetheless unequivocally stated that “a statutory right of appeal is not a new ‘category’ of correctness review” (para. 70).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-160", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 228", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "By the time these appeals were heard, contextual factors had practically disappeared from the standard of review analysis, replaced by a presumption of deference subject only to the correctness exceptions set out in Dunsmuir — which explicitly did not include statutory rights of appeal. In other words, the Court was well on its way to realizing Dunsmuir’s promise of a simplified analysis. Justice Gascon recognized as much last year in Canadian Human Rights Commission: This contextual approach should be applied sparingly. As held by the majority of this Court in Alberta Teachers, it is inappropriate to “retreat to the application of a full standard of review analysis where it can be determined summarily” . . . . After all, the “contextual approach can generate uncertainty and endless litigation concerning the standard of review” (Capilano [Edmonton East], at para. 35). The presumption of reasonableness review and the identified categories will generally be sufficient to determine the applicable standard. In the exceptional cases where such a contextual analysis may be justified to rebut the presumption, it need not be a long and detailed one (Capilano [Edmonton East], at para. 34). Where it has been done or referred to in the past, the analysis has been limited to determinative factors that showed a clear legislative intent justifying the rebuttal of the presumption (see, e.g., Rogers, at para. 15; Tervita, at paras. 35-36; see also, Saguenay, at paras. 50-51). [Emphasis added; para. 46.]", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-161", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 229–230", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In sum, for four decades, our standard of review jurisprudence has been clear and unwavering about the foundational role of specialized expertise and the limited role of statutory rights of appeal. Where confusion persists, it concerns the relevance of the contextual factors in Dunsmuir, the meaning of “true questions of jurisdiction” and how best to conduct reasonableness review. That was the backdrop against which these appeals were heard and argued. But rather than ushering in a simplified next act, these appeals have been used to rewrite the whole script, reassigning to the courts the starring role Dicey ordained a century ago. The Majority’s Reasons\n\nThe majority’s framework rests on a flawed and incomplete conceptual account of judicial review, one that unjustifiably ignores the specialized expertise of administrative decision-makers. Although the majority uses language endorsing a “presumption of reasonableness review”, this presumption now rests on a totally new understanding of legislative intent and the rule of law. By prohibiting any consideration of well-established foundations for deference, such as “expertise . . . institutional experience . . . proximity and responsiveness to stakeholders . . . prompt[ness], flexib[ility], and efficien[cy]; and . . . access to justice”, the majority reads out the foundations of the modern understanding of legislative intent in administrative law.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-162", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 231", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In particular, such an approach ignores the possibility that specialization and other advantages are embedded into the legislative choice to delegate particular subject matters to administrative decision-makers. Giving proper effect to the legislature’s choice to “delegate authority” to an administrative decision-maker requires understanding the advantages that the decision-maker may enjoy in exercising its mandate (Dunsmuir, at para. 49). As Iacobucci J. observed in Southam: Presumably if Parliament entrusts a certain matter to a tribunal and not (initially at least) to the courts, it is because the tribunal enjoys some advantage that judges do not. For that reason alone, review of the decision of a tribunal should often be on a standard more deferential than correctness. [Emphasis added; para. 55.]", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-163", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 232", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Chief among those advantages are the institutional expertise and specialization inherent to administering a particular mandate on a daily basis. Those appointed to administrative tribunals are often chosen precisely because their backgrounds and experience align with their mandate (Van Harten et al., at p. 15; Régimbald, at p. 463). Some administrative schemes explicitly require a degree of expertise from new members as a condition of appointment (Edmonton East, at para. 33; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at para. 29; Régimbald, at p. 462). As institutions, administrative bodies also benefit from specialization as they develop “habitual familiarity with the legislative scheme they administer” (Edmonton East, at para. 33) and “grappl[e] with issues on a repeated basis” (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, at para. 53). Specialization and expertise are further enhanced by continuing education and through meetings of the membership of an administrative body to discuss policies and best practices (Finn Makela, “Acquired Expertise of Administrative Tribunals and the Standard of Judicial Review: The Case of Grievance Arbitrators and Human Rights Law” (2013), 17 C.L.E.L.J. 345, at p. 349). In addition, the blended membership of some tribunals fosters special institutional competence in resolving “polycentric” disputes (Pushpanathan, at para. 36; Dr. Q, at paras. 29-30; Pezim, at pp. 591-92 and 596).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-164", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 233", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "All this equips administrative decision-makers to tackle questions of law arising from their mandates. In interpreting their enabling statutes, for example, administrative actors may have a particularly astute appreciation for the on-the-ground consequences of particular legal interpretations; of statutory context; of the purposes that a provision or legislative scheme are meant to serve; and of specialized terminology used in their administrative setting. Coupled with this Court’s acknowledgment that legislative provisions often admit of multiple reasonable interpretations, the advantages stemming from specialization and expertise provide a robust foundation for deference to administrative decision-makers on legal questions within their mandate (C.U.P.E., at p. 236; McLean, at para. 37). As Professor H. W. Arthurs said: There is no reason to believe that a judge who reads a particular regulatory statute once in his life, perhaps in worst-case circumstances, can read it with greater fidelity to legislative purpose than an administrator who is sworn to uphold that purpose, who strives to do so daily, and is well-aware of the effect upon the purpose of the various alternate interpretations. There is no reason to believe that a legally-trained judge is better qualified to determine the existence or sufficiency or appropriateness of evidence on a given point than a trained economist or engineer, an arbitrator selected by the parties, or simply an experienced tribunal member who decides such cases day in and day out.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-165", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 233–234", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "There is no reason to believe that a judge whose entire professional life has been spent dealing with disputes one by one should possess an aptitude for issues which arise often because an administrative system dealing with cases in volume has been designed to strike an appropriate balance between efficiency and effective rights of participation. (“Protection against Judicial Review” (1983), 43 R. du B. 277, at p. 289)\n\nJudges of this Court have endorsed both this passage and the broader proposition that specialization and expertise justify the deference owed to administrative decision-makers (National Corn Growers, at p. 1343, per Wilson J., concurring). As early as C.U.P.E., Dickson J. fused expertise and legislative intent by explaining that an administrative body’s specialized expertise can be essential to achieving the purposes of a statutory scheme: The Act calls for a delicate balance between the need to maintain public services, and the need to maintain collective bargaining. Consid­erable sensitivity and unique expertise on the part of Board members is all the more required if the twin purposes of the legislation are to be met. [p. 236]", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-166", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 235–236", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Over time, specialized expertise would become the core rationale for deferring to administrative decision-makers (Bradco Construction, at p. 335; Southam, at para. 50; Audrey Macklin, “Standard of Review: Back to the Future?”, in Colleen M. Flood and Lorne Sossin, eds., Administrative Law in Context (3rd ed. 2018), 381, at pp. 397-98). Post-Dunsmuir, the Court has been steadfast in confirming the central role of specialization and expertise, affirming their connection to legislative intent, and recognizing that they give administrative decision-makers the “interpretative upper hand” on questions of law (McLean, at para. 40; see also Conway, at para. 53; Mowat, at para. 30; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, at para. 13; Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, at para. 35; Mouvement laïque, at para. 46; Khosa, at para. 25; Edmonton East, at para. 33).\n\nAlthough the majority’s approach extolls respect for the legislature’s “institutional design choices”, it accords no weight to the institutional advantages of specialization and expertise that administrative decision-makers possess in resolving questions of law. In so doing, the majority disregards the historically accepted reason why the legislature intended to delegate authority to an administrative actor.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-167", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 237–239", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Nor are we persuaded by the majority’s claim that “if administrative decision makers are understood to possess specialized expertise on all questions that come before them, the concept of expertise ceases to assist a reviewing court in attempting to distinguish questions for which applying the reasonableness standard is appropriate from those for which it is not”. Here, the majority sets up a false choice: expertise must either be assessed on a case-by-case basis or play no role at all in a theory of judicial review.\n\nWe disagree. While not every decision-maker necessarily has expertise on every issue raised in an administrative proceeding, reviewing courts do not engage in an individualized, case-by-case assessment of specialization and expertise. The theory of deference is based not only on the legislative choice to delegate decisions, but also on institutional expertise and on “the reality that . . . those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (Khosa, at para. 25; see also Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, [2011] 3 S.C.R. 616, at para. 53; Edmonton East, at para. 33).\n\nThe exclusion of expertise, specialization and other institutional advantages from the majority’s standard of review framework is not merely a theoretical concern. The removal of the current “conceptual basis” for deference opens the gates to expanded correctness review. The majority’s “presumption” of deference will yield all too easily to justifications for a correctness-oriented framework.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-168", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 240–241", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the majority’s framework, deference gives way whenever the “rule of law” demands it. The majority’s approach to the rule of law, however, flows from a court-centric conception of the rule of law rooted in Dicey’s 19th century philosophy.\n\nThe rule of law is not the rule of courts. A pluralist conception of the rule of law recognizes that courts are not the exclusive guardians of law, and that others in the justice arena have shared responsibility for its development, including administrative decision-makers. Dunsmuir embraced this more inclusive view of the rule of law by acknowledging that the “court-centric conception of the rule of law” had to be “reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (para. 30). As discussed in Dunsmuir, the rule of law is understood as meaning that administrative decision-makers make legal determinations within their mandate, and not that only judges decide questions of law with an unrestricted license to substitute their opinions for those of administrative actors through correctness review (see McLachlin, Administrative Tribunals and the Courts: An Evolutionary Relationship; The Hon. Thomas A. Cromwell, “What I Think I’ve Learned About Administrative Law” (2017), 30 C.J.A.L.P. 307, at p. 308; Wilson v. Atomic Energy of Canada Ltd., [2016] 1 S.C.R. 770, at para. 31, per Abella J.).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-169", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 242–243", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Moreover, central to any definition of the rule of law is access to a fair and efficient dispute resolution process, capable of dispensing timely justice (Hryniak v. Mauldin, [2014] 1 S.C.R. 87, at para. 1). This is an important objective for all litigants, from the sophisticated consumers of administrative justice, to, most significantly, the particularly vulnerable ones (Angus Grant and Lorne Sossin, “Fairness in Context: Achieving Fairness Through Access to Administrative Justice”, in Colleen M. Flood and Lorne Sossin, eds., Administrative Law in Context (3rd ed. 2018), 341, at p. 342). For this reason, access to justice is at the heart of the legislative choice to establish a robust system of administrative law (Grant and Sossin, at pp. 342 and 369-70; Van Harten, et al., at p. 17; Régimbald, at pp. 2-3; McLachlin, Administrative Tribunals and the Courts: An Evolutionary Relationship). As Morissette J.A. has observed: . . . the aims of administrative law . . . generally gravitate towards promoting access to justice. The means contemplated are costless or inexpensive, simple and expeditious procedures, expertise of the decision-makers, coherence of reasons, consistency of results and finality of decisions. (Yves-Marie Morissette, “What is a ‘reasonable decision’?” (2018), 31 C.J.A.L.P. 225, at p. 236)\n\nThese goals are compromised when a narrow conception of the “rule of law” is invoked to impose judicial hegemony over administrative decision-makers. Doing so perverts the purpose of establishing a parallel system of administrative justice, and adds unnecessary expense and complexity for the public.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-170", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 244", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority even calls for a reformulation of the “questions of central importance” category from Dunsmuir and permits courts to substitute their opinions for administrative decision-makers on “questions of central importance to the legal system as a whole”, even if those questions fall squarely within the mandate and expertise of the administrative decision-maker. As noted in Canadian Human Rights Commission, correctness review was permitted only for questions “of central importance to the legal system and outside the specialized expertise of the adjudicator” (para. 28 (emphasis in original)). Broadening this category from its original characterization unduly expands the issues available for judicial substitution. Issues of discrimination, labour rights, and economic regulation of the securities markets (among many others) theoretically raise questions of vital importance for Canada and its legal system. But by ignoring administrative decision-makers’ expertise on these matters, this category will inevitably provide more “room . . . for both mistakes and manipulation” (Andrew Green, “Can There Be Too Much Context in Administrative Law? Setting the Standard of Review in Canadian Administrative Law” (2014), 47 U.B.C. L. Rev. 443, at p. 483). We would leave Dunsmuir’s description of this category undisturbed.[1]", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-171", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 245–246", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "We also disagree with the majority’s reformulation of “legislative intent” to include, for the first time, an invitation for courts to apply correctness review to legal questions whenever an administrative scheme includes a right of appeal. We do not see how appeal rights represent a “different institutional structure” that requires a more searching form of review. The mere fact that a statute contemplates a reviewing role for a court says nothing about the degree of deference required in the review process. Rights of appeal reflect different choices by different legislatures to permit review for different reasons, on issues of fact, law, mixed fact and law, and discretion, among others. Providing parties with a right of appeal can serve several purposes entirely unrelated to the standard of review, including outlining: where the appeal will take place (sometimes, at a different reviewing court than in the routes provided for judicial review); who is eligible to take part; when materials must be filed; how materials must be presented; the reviewing court’s powers on appeal; any leave requirements; and the grounds on which the parties may appeal (among other things). By providing this type of structure and guidance, statutory appeal provisions may allow legislatures to promote efficiency and access to justice, in a way that exclusive reliance on the judicial review procedure would not have.\n\nIn reality, the majority’s position on statutory appeal rights, although couched in language about “giv[ing] effect to the legislature’s institutional design choices”, hinges almost entirely on a textualist argument: the presence of the word “appeal” indicates a legislative intent that courts apply the same standards of review found in civil appellate jurisprudence.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-172", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 247–249", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority’s reliance on the “presumption of consistent expression” in relation to the single word “appeal” is misplaced and disregards long-accepted institutional distinctions between how courts and administrative decision-makers function. The language in each setting is different; the mandates are different; the policy bases are different. The idea that Housen v. Nikolaisen, [2002] 2 S.C.R. 235, must be inflexibly applied to every right of “appeal” within a statute — with no regard for the broader purposes of the statutory scheme or the practical implications of greater judicial involvement within it — is entirely unsupported by our jurisprudence.\n\nIn addition, the majority’s claim that legislatures “d[o] not speak in vain” is irreconcilable with its treatment of privative clauses, which play no role in its standard of review framework. If, as the majority claims, Parliament’s decision to provide appeal routes must influence the standard of review analysis, there is no principled reason why Parliament’s decision via privative clauses to prohibit appeals should not be given comparable effect.[2]\n\nIn any event, legislatures in this country have known for at least 25 years since Pezim that this Court has not treated statutory rights of appeal as a determinative reflection of legislative intent regarding the standard of review (Pezim, at p. 590). Against this reality, the continued use by legislatures of the term “appeal” cannot be imbued with the intent that the majority retroactively ascribes to it; doing so is inconsistent with the principle that legislatures are presumed to enact legislation in compliance with existing common law rules (Ruth Sullivan, Statutory Interpretation (3rd ed. 2016), at p. 315).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-173", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 250", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Those legislatures, moreover, understood from our jurisprudence that this Court was committed to respecting standards of review that were statutorily prescribed, as British Columbia alone has done.[3] We agree with the Attorney General of Canada’s position in the companion appeals of Bell Canada v. Canada (Attorney General), [2019] 4 S.C.R. 845, that, absent exceptional circumstances, the existence of a statutory right of appeal does not displace the presumption that the standard of reasonableness applies.[4] The majority, however, has inexplicably chosen the template proposed by the amici,[5] recommending a sweeping overhaul of our approach to legislative intent and to the determination of the standard of review.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-174", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 251", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The result reached by the majority means that hundreds of administrative decision-makers subject to different kinds of statutory rights of appeal — some in highly specialized fields, such as broadcasting, securities regulation and international trade — will now be subject to an irrebuttable presumption of correctness review. This has the potential to cause a stampede of litigation. Reviewing courts will have license to freely revisit legal questions on matters squarely within the expertise of administrative decision-makers, even if they are of no broader consequence outside of their administrative regimes. Even if specialized decision-makers provide reasonable interpretations of highly technical statutes with which they work daily, even if they provide internally consistent interpretations responsive to the parties’ submissions and consistent with the text, context and purpose of the governing scheme, the administrative body’s past practices and decisions, the common law, prior judicial rulings and international law, those interpretations can still be set aside by a reviewing court that simply takes a different view of the relevant statute. This risks undermining the integrity of administrative proceedings whenever there is a statutory right of appeal, rendering them little more than rehearsals for a judicial appeal — the inverse of the legislative intent to establish a specialized regime and entrust certain legal and policy questions to non-judicial actors.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-175", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 252", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Ironically, the majority’s approach will be a roadblock to its promise of simplicity. Elevating appeal clauses to indicators of correctness review creates a two-tier system of administrative law: one tier that defers to the expertise of administrative decision-makers where there is no appeal clause; and another tier where such clauses permit judges to substitute their own views of the legal issues at the core of those decision-makers’ mandates. Within the second tier, the application of appellate law principles will inevitably create confusion by encouraging segmentation in judicial review (Mouvement laïque, at para. 173, per Abella J., concurring in part; see also Paul Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” (2016), 62 McGill L.J. 527, at pp. 542-43; the Hon. Joseph T. Robertson, “Identifying the Review Standard: Administrative Deference in a Nutshell” (2017), 68 U.N.B.L.J. 145, at p. 162). Courts will be left with the task of identifying palpable and overriding errors for factual questions, extricating legal issues from questions of mixed fact and law, reviewing questions of law de novo, and potentially having to apply judicial review and appellate standards interchangeably if an applicant challenges in one proceeding multiple aspects of an administrative decision, some falling within an appeal clause and others not. It is an invitation to complexity and a barrier to access to justice.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-176", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 253–254", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority’s reasons “roll back the Dunsmuir clock to an era where some courts asserted a level of skill and knowledge in administrative matters which further experience showed they did not possess” (Khosa, at para. 26). The reasons elevate statutory rights of appeal to a determinative factor based on a formalistic approach that ignores the legislature’s intention to leave certain legal and policy questions to specialized administrative decision-makers. This unravelling of Canada’s carefully developed, deferential approach to administrative law returns us to the “black letter law” approach found in Anisminic and cases like Metropolitan Life whereby specialized decision-makers were subject to the pre-eminent determinations of a judge. Rather than building on Dunsmuir, which recognized that specialization is fundamentally intertwined with the legislative choice to delegate particular subject matters to administrative decision-makers, the majority’s reasons banish expertise from the standard of review analysis entirely, opening the door to a host of new correctness categories which remain open to further expansion. The majority’s approach not only erodes the presumption of deference; it erodes confidence in the existence — and desirability — of the “shared enterprises in the administrative state” of “[l]aw-making and legal interpretation” between courts and administrative decision-makers (Stack, at p. 310).\n\nBut the aspect of the majority’s decision with the greatest potential to undermine both the integrity of this Court’s decisions, and public confidence in the stability of the law, is its disregard for precedent and stare decisis.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-177", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 255", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Stare decisis places significant limits on this Court’s ability to overturn its precedents. Justice Rothstein described some of these limits in Canada v. Craig, [2012] 2 S.C.R. 489, the case about horizontal stare decisis on which the majority relies: The question of whether this Court should overrule one of its own prior decisions was addressed recently in Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3. At paragraph 56, Chief Justice McLachlin and LeBel J., in joint majority reasons, noted that overturning a precedent of this Court is a step not to be lightly undertaken. This is especially so when the precedent represents the considered views of firm majorities (para. 57). Nonetheless, this Court has overruled its own decisions on a number of occasions. (See R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1353, per Lamer C.J., for the majority; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Robinson, [1996] 1 S.C.R. 683.) However, the Court must be satisfied based on compelling reasons that the precedent was wrongly decided and should be overruled . . . . Courts must proceed with caution when deciding to overrule a prior decision. In Queensland v. Commonwealth (1977), 139 C.L.R. 585 (H.C.A.), at p. 599, Justice Gibbs articulated the required approach succinctly: No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-178", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 255–257", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court. [Emphasis added; paras. 24-26.]\n\nApex courts in several jurisdictions outside Canada have similarly stressed the need for caution and compelling justification before departing from precedent. The United States Supreme Court refrains from overruling its past decisions absent a “special justification”, which must be over and above the belief that a prior case was wrongly decided (Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015), at p. 2409; see also Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258 (2014), at p. 266; Kisor v. Wilkie, 139 S. Ct. 2400 (2019), at pp. 2418 and 2422; Bryan A. Garner et al., The Law of Judicial Precedent (2016), at pp. 35-36).\n\nSimilarly, the House of Lords “require[d] much more than doubts as to the correctness of [a past decision] to justify departing from it” (Fitzleet Estates Ltd. v. Cherry (1977), 51 T.C. 708, at p. 718), an approach that the United Kingdom Supreme Court continues to endorse (R. v. Taylor, [2016] UKSC 5, [2016] 4 All E.R. 617, at para. 19; Willers v. Joyce (No. 2), [2016] UKSC 44, [2017] 2 All E.R. 383, at para. 7; Knauer v. Ministry of Justice, [2016] UKSC 9, [2016] 4 All E.R. 897, at paras. 22-23).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-179", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 258–259", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "New Zealand’s Supreme Court views “caution, often considerable caution” as the “touchstone” of its approach to horizontal stare decisis, and has emphasized that it will not depart from precedent “merely because, if the matter were being decided afresh, the Court might take a different view” (Couch v. Attorney-General (No. 2), [2010] NZSC 27, [2010] 3 N.Z.L.R. 149, at paras. 105, per Tipping J., and 209, per McGrath J.).\n\nRestraint and respect for precedent also guide the High Court of Australia and South Africa’s Constitutional Court when applying stare decisis (Lee v. New South Wales Crime Commission, [2013] HCA 39, 302 A.L.R. 363, at paras. 62-66 and 70; Camps Bay Ratepayers’ and Residents’ Association v. Harrison, [2010] ZACC 19, 2011 (4) S.A. 42, at pp. 55-56; Buffalo City Metropolitan Municipality v. Asla Construction (Pty) Ltd., [2019] ZACC 15, 2019 (4) S.A. 331, at para. 65).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-180", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 260", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The virtues of horizontal stare decisis are widely recognized. The doctrine “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process” (Kimble, at p. 2409, citing Payne v. Tennessee, 501 U.S. 808 (1991), at p. 827). This Court has stressed the importance of stare decisis for “[c]ertainty in the law” (Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, at para. 38; R. v. Bernard, [1988] 2 S.C.R. 833, at p. 849; Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518, at p. 527). Other courts have described stare decisis as a “foundation stone of the rule of law” (Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014), at p. 798; Kimble, at p. 2409; Kisor, at p. 2422; see also Camps Bay, at pp. 55-56; Jeremy Waldron, “Stare Decisis and the Rule of Law: A Layered Approach” (2012), 111 Mich. L. Rev. 1, at p. 28; Lewis F. Powell, Jr., “Stare Decisis and Judicial Restraint” (1990), 47 Wash. & Lee L. Rev. 281, at p. 288).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-181", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 261–262", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Respect for precedent also safeguards this Court’s institutional legitimacy. The precedential value of a judgment of this Court does not “expire with the tenure of the particular panel of judges that decided it” (Plourde v. Wal-Mart Canada Corp., [2009] 3 S.C.R. 465, at para. 13). American cases have stressed similar themes: There is . . . a point beyond which frequent overruling would overtax the country’s belief in the Court’s good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation. (Planned Parenthood of Southeastern Pennsylvania v. Casey, Governor of Pennsylvania, 505 U.S. 833 (1992), at p. 866; see also Florida Department of Health and Rehabilitative Services v. Florida Nursing Home Association, 450 U.S. 147 (1981), at p. 153, per Stevens J., concurring.)\n\nSeveral scholars have made this point as well (see e.g., Michael J. Gerhardt, The Power of Precedent (2008), at p. 18; Garner et al., at p. 391). Aharon Barak has warned that overruling precedent damages the public’s conception of the judicial role, and undermines the respect in which the public holds the courts and its faith in them. Precedent should not resemble a ticket valid only for the day of purchase. (“Overruling Precedent” (1986), 21 Is.L.R. 269, at p. 275)", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-182", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 263–264", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority’s reasons, in our view, disregard the high threshold required to overturn one of this Court’s decisions. The justification for the majority abandoning this Court’s long-standing view of how statutory appeal clauses impact the standard of review analysis is that this Court’s approach was “unsound in principle” and criticized by judges and academics. The majority also suggests that the Court’s decisions set up an “unworkable and unnecessarily complex” system of judicial review. Abandoning them, the majority argues, would promote the values underlying stare decisis, namely “clarity and certainty in the law”. In doing so, the majority discards several of this Court’s bedrock administrative law principles.\n\nThe majority leaves unaddressed the most significant rejection of this Court’s jurisprudence in its reasons — its decision to change the entire “conceptual basis” for judicial review by excluding specialization, expertise and other institutional advantages from the analysis. The lack of any justification for this foundational shift — repeatedly invoked by the majority to sanitize further overturning of precedent — undercuts the majority’s stated respect for stare decisis principles.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-183", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 265", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority explains its decision to overrule the Court’s prior decisions about appeal clauses by asserting that these precedents had “no satisfactory justification”. It does not point, however, to any arguments different from those heard and rejected by other panels of this Court over the decades whose decisions are being discarded. Instead, the majority substitutes its own preferred approach to interpreting statutory rights of appeal — an approach rejected by several prior panels of this Court in a line of decisions stretching back three decades. The rejection of such an approach was explicitly reaffirmed no fewer than four times in the past ten years (Khosa, at para. 26; Mowat, at paras. 30-31; Mouvement laïque, at para. 38; Edmonton East, at paras. 27-31; see also McLean, at para. 21).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-184", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 266", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Overruling these judgments flouts stare decisis principles, which prohibit courts from overturning past decisions which “simply represen[t] a preferred choice with which the current Bench does not agree” (Couch, at para. 105; see also Knauer, at para. 22; Casey, at p. 864). “[T]he entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance” (Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162 (2019), at p. 2190, per Kagan J., dissenting). As the United States Supreme Court noted in Kimble: . . . an argument that we got something wrong — even a good argument to that effect — cannot by itself justify scrapping settled precedent. Or otherwise said, it is not alone sufficient that we would decide a case differently now than we did then. To reverse course, we require as well what we have termed a “special justification” — over and above the belief “that the precedent was wrongly decided.” [Citation omitted; p. 2409.]", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-185", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 267", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "But it is the unprecedented wholesale rejection of an entire body of jurisprudence that is particularly unsettling. The affected cases are too numerous to list in full here. It includes many decisions conducting deferential review even in the face of a statutory right of appeal (Pezim; Southam; Committee for Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission), [2001] 2 S.C.R. 132; Dr. Q; Ryan; Cartaway; VIA Rail; Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc., [2008] 2 S.C.R. 195; Nolan v. Kerry (Canada) Inc., [2009] 2 S.C.R. 678; McLean; Bell Canada (2009); ATCO Gas; Mouvement laïque; Igloo Vikski; Edmonton East) and bedrock judgments affirming the relevance of administrative expertise to the standard of review analysis and to “home statute” deference (C.U.P.E.; National Corn Growers; Domtar Inc.; Bradco Construction; Southam; Pushpanathan; Alberta Teachers’ Association; Canadian Human Rights Commission, among many others).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-186", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 268", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Most of those decisions were decided unanimously or by strong majorities. At no point, however, does the majority acknowledge this Court’s strong reluctance to overturn precedents that “represen[t] the considered views of firm majorities” (Craig, at para. 24; Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3, at para. 57; see also Nishi v. Rascal Trucking Ltd., [2013] 2 S.C.R. 438, at paras. 23-24), or to overrule decisions of a “recent vintage” (Fraser, at para. 57; see also Nishi, at para. 23). The decisions the majority does rely on, by contrast, involved overturning usually only one precedent and almost always an older one: Craig overruled a 34-year-old precedent; R. v. Henry, [2005] 3 S.C.R. 609, overruled a 19-year-old precedent (and another 15-year-old precedent, in part); and the dissenting judges in Bernard would have overruled a 10-year-old precedent.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-187", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 269–270", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority’s decision to overturn precedent also has the potential to disturb settled interpretations of many statutes that contain a right of appeal. Under the majority’s approach, every existing interpretation of such statutes by an administrative body that has been affirmed under a reasonableness standard of review will be open to fresh challenge. In McLean, for example, this Court acknowledged that a limitations period in British Columbia’s Securities Act[6] had two reasonable interpretations, but deferred to the one the Commission preferred based on deferential review. We see no reason why an individual in the same situation as Ms. McLean could not now revisit our Court’s decision through the statutory right of appeal in the Securities Act, and insist that a new reviewing court offer its definitive view of the relevant limitations period now that appeal clauses are interpreted to permit judicial substitution rather than deference.\n\nThe majority does not address the chaos that such legal uncertainty will generate for those who rely on settled interpretations of administrative statutes to structure their affairs, despite the fact that protecting these reliance interests is a well-recognized and especially powerful reason for respecting precedent (Garner et al., at pp. 404-11; Neil Duxbury, The Nature and Authority of Precedent (2008), at pp. 118‑19; Kimble, at pp. 2410-11). By changing the entire status quo, the majority’s approach will undermine legal certainty — “the foundational principle upon which the common law relies” (Bedford, at para. 38; see also Cromwell, at p. 315).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-188", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 271", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Moreover, if this Court had for over 30 years significantly misconstrued the purpose of statutory appeal routes by failing to recognize what this majority has ultimately discerned — that in enacting such routes, legislatures were unequivocally directing courts to review de novo every question of law that an administrative body addresses, regardless of that body’s expertise — legislatures across Canada were free to clarify this interpretation and endorse the majority’s favoured approach through legislative amendment. Given the possibility — and continued absence — of legislative correction, the case for overturning our past decisions is even less compelling (Binus v. The Queen, [1967] S.C.R. 594, at p. 601; see also Kimble, at p. 2409; Kisor, at pp. 2422-23; Bilski v. Kappos, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office, 561 U.S. 593 (2010), at pp. 601-2).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-189", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 272", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Each of these rationales for adhering to precedent — consistent affirmation, reliance interests and the possibility of legislative correction — was recently endorsed by the United States Supreme Court in Kisor. There, the Court invoked stare decisis to uphold two administrative law precedents which urged deference to administrative agencies when they interpreted ambiguous provisions in their regulations (Bowles, Price Administrator v. Seminole Rock & Sand Co., 325 U.S. 410 (1945); Auer v. Robbins, 519 U.S. 452 (1997)). Writing for the majority on the issue of stare decisis, Justice Kagan explained at length why the doctrine barred the Court from overturning Auer or Seminole Rock. To begin, Justice Kagan reiterated the importance of stare decisis and the need for special justification to overcome its demands. She then explained that stare decisis carried even greater force than usual when applied to two decisions that had been affirmed by a “long line of precedents” going back 75 years or more and cited by lower courts thousands of times (p. 2422). She noted that overturning the challenged precedents would cast doubt on many settled statutory interpretations and invite relitigation of cases (p. 2422). Finally, Justice Kagan reasoned that Congress remained free to overturn the cases if the Court had misconstrued legislative intent: . . . even if we are wrong about Auer, “Congress remains free to alter what we have done.” In a constitutional case, only we can correct our error. But that is not so here. Our deference decisions are “balls tossed into Congress’s court, for acceptance or not as that branch elects.” And so far, at least, Congress has chosen acceptance.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-190", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 272", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "It could amend the APA or any specific statute to require the sort of de novo review of regulatory interpretations that Kisor favors. Instead, for approaching a century, it has let our deference regime work side-by-side with both the APA and the many statutes delegating rulemaking power to agencies. It has done so even after we made clear that our deference decisions reflect a presumption about congressional intent. And it has done so even after Members of this Court began to raise questions about the doctrine. Given that history — and Congress’s continuing ability to take up Kisor’s arguments — we would need a particularly “special justification” to now reverse Auer. [Citations omitted; pp. 2422-23.]", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-191", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 273", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the face of these compelling reasons for adhering to precedent, many of which have found resonance in this Court’s jurisprudence, the majority’s reliance on “judicial and academic criticism” falls far short of overcoming the demands of stare decisis. It is hard to see why the obiter views of the handful of Canadian judges referred to by the majority should be determinative or even persuasive. The majority omits the views of any academics or judges who have voiced support for a strong presumption of deference without identifying our approach to statutory rights of appeal as cause for concern (Dyzenhaus, “Dignity in Administrative Law: Judicial Deference in a Culture of Justification”, at p. 109; Green, at pp. 489-90; Matthew Lewans, Administrative Law and Judicial Deference (2016); Jonathan M. Coady, “The Time Has Come: Standard of Review in Canadian Administrative Law” (2017), 68 U.N.B.L.J. 87; the Hon. John M. Evans, “Standards of Review in Administrative Law” (2013), 26 C.J.A.L.P. 67, at p. 79; the Hon. John M. Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?” (2014), 27 C.J.A.L.P. 101; Jerry V. DeMarco, “Seeking Simplicity in Canada’s Complex World of Judicial Review” (2019), 32 C.J.A.L.P. 67).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-192", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 274", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "A selective assortment of criticism is not evidence of generalized criticism or unworkability. This Court frequently tackles contentious, high-profile cases that engender strong and persisting divisions of opinion. The public looks to us to definitively resolve those cases, regardless of the composition of the Court. As Hayne J. noted in Lee: To regard the judgments of this Court as open to reconsideration whenever a new argument is found more attractive than the principle expressed in a standing decision is to overlook the function which a final court of appeal must perform in defining the law. In difficult areas of the law, differences of legal opinion are inevitable; before a final court of appeal, the choice between competing legal solutions oftentimes turns on the emphasis or weight given by each of the judges to one factor against a countervailing factor. . . . In such cases, the decision itself determines which solution is, for the purposes of the current law, correct. It is not to the point to argue in the next case that, leaving the particular decision out of account, another solution is better supported by legal theory. Such an approach would diminish the authority and finality of the judgments of this Court. As the function of defining the law is vested in the Court rather than in the justices who compose it, a decision of the Court will be followed in subsequent cases by the Court, however composed, subject to the exceptional power which resides in the Court to permit reconsideration. Accordingly, as one commentator has put the point: “the previous decision is to be treated as the primary premise from which other arguments follow, and not just as one potential premise among an aggregate of competing premises”.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-193", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 274–275", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "[Emphasis in original; footnote omitted.] (paras. 65-66, citing Baker v. Campbell (1983), 153 C.L.R. 52 (H.C.A.), at pp. 102-3.)\n\nThis Court, in fact, has been clear that “criticism of a judgment is not sufficient to justify overruling it” (Fraser, at para. 86). Differences of legal and public opinion are a natural by-product of contentious cases like R. v. Jordan, [2016] 1 S.C.R. 631, or even Housen, which, as this Court acknowledged, was initially applied by appeal courts with “varying degrees of enthusiasm” (H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, at para. 76; see also Paul M. Perell, “The Standard of Appellate Review and The Ironies of Housen v. Nikolaisen” (2004), 28 Adv. Q. 40, at p. 53; Mike Madden, “Conquering the Common Law Hydra: A Probably Correct and Reasonable Overview of Current Standards of Appellate and Judicial Review” (2010), 36 Adv. Q. 269, at pp. 278-79 and 293; Paul J. Pape and John J. Adair, “Unreasonable review: The losing party and the palpable and overriding error standard” (2008), 27 Adv. J. 6, at p. 8; Geoff R. Hall, “Two Unsettled Questions in the Law of Contractual Interpretation: A Call to the Supreme Court of Canada” (2011), 50 Can. Bus. L.J. 434, at p. 436).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-194", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 276", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "To justify circumventing this Court’s jurisprudence, the majority claims that the precedents being overturned themselves departed from the approach to statutory rights of appeal under the pragmatic and functional test. That, with respect, is wrong. Ever since Bell Canada (1989) and in several subsequent decisions outlined earlier in these reasons, statutory rights of appeal have played little or no role in the standard of review analysis. Moreover, in pre-Dunsmuir cases, statutory rights of appeal were still seen as only one factor among others — and not as unequivocal indicators of correctness review (see, for example, Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, at paras. 27-33; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at paras. 23-24; Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45, at paras. 149-51). Our pre- and post-Dunsmuir cases on statutory rights of appeal shared in common an unwavering commitment to determining the standard of review in administrative proceedings using administrative law principles, even when appeal rights were involved.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-195", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 277–278", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "For the majority, the elimination of the contextual factors appears to have justified the reconstruction of the whole judicial review framework. Yet the elimination of the contextual analysis was all but complete in our post-Dunsmuir jurisprudence, and does not support the foundational changes to judicial review in the majority’s decision. Neither that development, nor the majority’s assertion that our precedents have proven “unclear and unduly complex”, justifies the conclusion that all of our administrative law precedents — even those unconnected to the practical difficulties in applying Dunsmuir — are suddenly fair game.\n\nThis Court is overturning a long line of well-established and recently-affirmed precedents in a whole area of law, including several unanimous or strong majority judgments. There is no principled justification for such a dramatic departure from this Court’s existing jurisprudence. Going Forward", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-196", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 279", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In our view, a more modest approach to modifying our past decisions, one that goes no further than necessary to clarify the law and its application, is justified. “[W]hen a court does choose to overrule its own precedents, it should do so carefully, with moderation, and with due regard for all the important considerations that undergird the doctrine” (Garner et al., at pp. 41-42). Such an approach to changing precedent preserves the integrity of the judicial process and, at a more conceptual level, of the law itself as a social construct. Michael J. Gerhardt summarized this approach eloquently: Judicial modesty is . . . a disposition to respect precedents (as embodying the opinions of others), to learn from their and others’ experiences, and to decide cases incrementally to minimize conflicts with either earlier opinions of the Court or other constitutional actors. [p. 7]", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-197", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 280–281", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Judicial modesty promotes the responsible development of the common law. Lord Tom Bingham described that process in his seminal work, The Rule of Law (2010): . . . it is one thing to move the law a little further along a line on which it is already moving, or to adapt it to accord with modern views and practices; it is quite another to seek to recast the law in a radically innovative or adventurous way, because that is to make it uncertain and unpredictable, features which are the antithesis of the rule of law. [pp. 45-46] (See also Robert J. Sharpe, Good Judgment: Making Judicial Decisions (2018), at p. 93; Beverley McLachlin, “The Role of the Supreme Court of Canada in Shaping the Common Law”, in Paul Daly, ed., Apex Courts and the Common Law (2019), 25, at p. 35; R. v. Salituro, [1991] 3 S.C.R. 654, at p. 670; Friedmann Equity Developments Inc. v. Final Note Ltd., [2000] 1 S.C.R. 842, at para. 42; R. v. Kang-Brown, [2008] 1 S.C.R. 456, at paras. 14-16, per LeBel J., and 73-74, per Binnie J., concurring.)\n\nLord Bingham’s comments highlight that a nuanced balance must be struck between maintaining the stability of the common law and ensuring that the law is flexible and responsive enough to adapt to new circumstances and shifts in societal norms. Stare decisis plays a critical role in maintaining that balance and upholding the rule of law. When stare decisis is respected, precedent acts as a stabilizing force: providing certainty as to what the law is, consistency that allows those subject to the law to order their affairs accordingly, and continuity that protects reliance on those legal consequences. Stare decisis is at the heart of the iterative development of the common law, fostering progressive, incremental and responsible change.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-198", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 282", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "So what do we suggest? We support a standard of review framework with a meaningful rule of deference, based on both the legislative choice to delegate decision-making authority to an administrative actor and on the specialized expertise that these decision-makers possess and develop in applying their mandates. Outside of the three remaining correctness categories from Dunsmuir — and absent clear and explicit legislative direction on the standard of review — administrative decisions should be reviewed for reasonableness. Like the majority, we support eliminating the category of “true questions of jurisdiction” and foreclosing the use of the contextual factors identified in Dunsmuir. These developments introduce incremental changes to our judicial review framework, while respecting its underlying principles and placing the ball in the legislatures’ court to modify the standards of review if they wish.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-199", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 283–284", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "To the extent that concerns were expressed about the quality of administrative decision making by some interveners who represented particularly vulnerable groups, we agree that they must be taken seriously. But the solution does not lie in authorizing more incursions into the administrative system by generalist judges who lack the expertise necessary to implement these sensitive mandates. Any perceived shortcomings in administrative decision making are not solved by permitting de novo review of every legal decision by a court and, as a result, adding to the delay and cost of obtaining a final decision. The solution lies instead in ensuring the proper qualifications and training of administrative decision-makers. Like courts, administrative actors are fully capable of, and responsible for, improving the quality of their own decision-making processes, thereby strengthening access to justice in the administrative justice system.\n\nWe also acknowledge that this Court should offer additional direction on conducting reasonableness review.[7] We fear, however, that the majority’s multi-factored, open-ended list of “constraints” on administrative decision making will encourage reviewing courts to dissect administrative reasons in a “line-by-line treasure hunt for error” (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., [2013] 2 S.C.R. 458, at para. 54). These “constraints” may function in practice as a wide-ranging catalogue of hypothetical errors to justify quashing an administrative decision — a checklist with unsettling similarities to the series of “jurisdictional errors” spelled out in Anisminic itself.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-200", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 285–287", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Structuring reasonableness review in this fashion effectively imposes on administrative decision-makers a higher standard of justification than that applied to trial judges. Such an approach undercuts deference and revives a long-abandoned posture of suspicion towards administrative decision making. We are also concerned by the majority’s warning that administrative decision-makers cannot “arrogate powers to themselves that they were never intended to have”, an unhelpful truism that risks reintroducing the tortured concept of “jurisdictional error” by another name.\n\nWe would advocate a continued approach to reasonableness review which focuses on the concept of deference and what it requires of reviewing courts. Curial deference, after all, is the hallmark of reasonableness review, setting it apart from the substitution of opinion permitted under the correctness standard. The choice of a particular standard of review — whether described as “correctness”, “reasonableness” or in other terms — is fundamentally about “whether or not a reviewing court should defer”[8] to an administrative decision (see Dunsmuir, at para. 141, per Binnie J., concurring; Régimbald, at pp. 539-40). If courts, therefore, are to properly conduct “reasonableness” review, they must properly understand what deference means.\n\nIn our view, deference imposes three requirements on courts conducting reasonableness review. It informs the attitude a reviewing court must adopt towards an administrative decision-maker; it affects how a court frames the question it must answer on judicial review; and it affects how a reviewing court evaluates challenges to an administrative decision.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-201", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 288–289", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "First and foremost, deference is an “attitude of the court” conducting reasonableness review (Dunsmuir, at para. 48). Deference mandates respect for the legislative choice to entrust a decision to administrative actors rather than to the courts, and for the important role that administrative decision-makers play in upholding and applying the rule of law (Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, at para. 131, per LeBel J., concurring). Deference also requires respect for administrative decision-makers, their specialized expertise and the institutional setting in which they operate (Dunsmuir, at paras. 48-49). Reviewing courts must pay “respectful attention” to the reasons offered for an administrative decision, make a genuine effort to understand why the decision was made, and give the decision a fair and generous construction in light of the entire record (Newfoundland Nurses, at paras. 11-14 and 17).\n\nSecond, deference affects how a court frames the question it must answer when conducting judicial review. A reviewing court does not ask how it would have resolved an issue, but rather, whether the answer provided by the administrative decision-maker has been shown to be unreasonable (Khosa, at paras. 59 and 61-62; Dunsmuir, at para. 47). Framing the inquiry in this way ensures that the administrative decision under review is the focus of the analysis.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-202", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 290", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court has often endorsed this approach to conducting reasonableness review. In Ryan, for example, Iacobucci J. explained: . . . when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been. . . . The standard of reasonableness does not imply that a decision-maker is merely afforded a “margin of error” around what the court believes is the correct result. . . . Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness. . . . Even if there could be, notionally, a single best answer, it is not the court’s role to seek this out when deciding if the decision was unreasonable. [paras. 50-51] (See also Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178, at p. 214; Toronto (City), at paras. 94-95, per LeBel J., concurring; VIA Rail, at para. 101; Mason v. Minister of Citizenship and Immigration, 2019 FC 1251, at para. 22 (CanLII), per Grammond J.; Régimbald, at p. 539; Sharpe, at pp. 204 and 208; Paul Daly, “The Signal and the Noise in Administrative Law” (2017), 68 U.N.B.L.J. 67, at p. 85; Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?”, at p. 107.)", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-203", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 291", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Third, deferential review impacts how a reviewing court evaluates challenges to an administrative decision. Deference requires the applicant seeking judicial review to bear the onus of showing that the decision was unreasonable (Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), [2018] 1 S.C.R. 83, at para. 108; Mission Institution v. Khela, [2014] 1 S.C.R. 502, at para. 64; May v. Ferndale Institution, [2005] 3 S.C.R. 809, at para. 71; Ryan, at para. 48; Southam, at para. 61; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115, at p. 130). Focusing on whether the applicant has demonstrated that the decision is unreasonable reinforces the central role that administrative decisions play in a properly deferential review process, and confirms that the decision-maker does not have to persuade the court that its decision is reasonable.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-204", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 292", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Assessing whether a decision is reasonable also requires a qualitative assessment. Reasonableness is a concept that pervades the law but is difficult to define with precision (Dunsmuir, at para. 46). It requires, by its very nature, a fact-specific inquiry that involves a certain understanding of common experience. Reasonableness cannot be reduced to a formula or a checklist of factors, many of which will not be relevant to a particular decision. Ultimately, whether an administrative decision is reasonable will depend on the context (Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5, at para. 18). Administrative law covers an infinite variety of decisions and decision-making contexts, as LeBel J. colourfully explained in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at para. 158 (dissenting in part, but not on this point): . . . not all administrative bodies are the same. Indeed, this is an understatement. At first glance, labour boards, police commissions, and milk control boards may seem to have about as much in common as assembly lines, cops, and cows! Administrative bodies do, of course, have some common features, but the diversity of their powers, mandate and structure is such that to apply particular standards from one context to another might well be entirely inappropriate.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-205", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 293–294", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Deference, in our view, requires approaching each administrative decision on its own terms and in its own context. But we emphasize that the inherently contextual nature of reasonableness review does not mean that the degree of scrutiny applied by a reviewing court varies (Alberta Teachers’ Association, at para. 47; Wilson, at para. 18). It merely means that when assessing a challenge to an administrative decision, a reviewing court must be attentive to all relevant circumstances, including the reasons offered to support the decision, the record, the statutory scheme and the particular issues raised by the applicant, among other factors (see, for example, Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at para. 40; Newfoundland Nurses, at para. 18; Van Harten et al., at p. 794). Without this context, it is impossible to determine what constitutes a sufficiently compelling justification to quash a decision under reasonableness review. Context may make a challenge to an administrative decision more or less persuasive — but it does not alter the deferential posture of the reviewing court (Suresh, at para. 40).\n\nDeference, however, does not require reviewing courts to shirk their obligation to review the decision. So long as they maintain a respectful attitude, frame the judicial review inquiry properly and demand compelling justification for quashing a decision, reviewing courts are entitled to meaningfully probe an administrative decision. A thorough evaluation by a reviewing court is not “disguised correctness review”, as some have used the phrase. Deference, after all, stems from respect, not inattention to detail.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-206", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 295–296", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Bearing this in mind, we offer the following suggestions for conducting reasonableness review. We begin with situations where reasons are required.[9]\n\nThe administrative decision is the focal point of the review exercise. Where reasons are provided, they serve as the natural starting point to determine whether the decision-maker acted reasonably (Williams Lake, at para. 36). By beginning with the reasons offered for the decision, read in light of the surrounding context and the grounds raised to challenge the decision, reviewing courts provide meaningful oversight while respecting the legitimacy of specialized administrative decision making.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-207", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 297–298", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Reviewing courts should approach the reasons with respect for the specialized decision-makers, the significant role they have been assigned and the institutional context chosen by the legislator. Reasons should be approached generously, on their own terms. Reviewing courts should be hesitant to second-guess operational implications, practical challenges and on-the-ground knowledge used to justify an administrative decision. Reviewing courts must also remain alert to specialized concepts or language used in an administrative decision that may be unfamiliar to a generalist judge (Newfoundland Nurses, at para. 13; Igloo Vikski, at paras. 17 and 30). When confronted with unfamiliar language or modes of reasoning, judges should acknowledge that such differences are an inevitable, intentional and invaluable by-product of the legislative choice to assign a matter to the administrative system. They may lend considerable force to an administrative decision and, by the same token, render an applicant’s challenge to that decision less compelling. Reviewing courts scrutinizing an administrative body’s decision under the reasonableness framework should therefore keep in mind that the administrative body holds the “interpretative upper hand” (McLean, at para. 40).\n\nThroughout the review process, a court conducting deferential review must view claims of administrative error in context and with caution, cognizant of the need to avoid substituting its opinion for that of those empowered and better equipped to answer the questions at issue. Because judicial substitution is incompatible with deference, reviewing courts must carefully evaluate the challenges raised by an applicant to ensure they go to the reasonableness of the administrative decision.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-208", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 299", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Unsurprisingly, applicants rarely present challenges to an administrative decision as explicit invitations for courts to substitute their opinions for those of administrative actors. Courts, therefore, must carefully probe challenges to administrative decisions to assess whether they amount, in substance, to a mere difference of opinion with how the administrative decision-maker weighed or prioritized the various factors relevant to the decision-making process. Allegations of error may, on deeper examination, simply reflect a legitimate difference in approach by an administrative decision-maker. By rooting out and rejecting such challenges, courts respect the valuable and distinct perspective that administrative bodies bring to answering legal questions, flowing from the considerable expertise and field sensitivity they develop by administering their mandate and working within the intricacies of their statutory context on a daily basis. The understanding and insights of administrative actors enhance the decision-making process and may be more conducive to reaching a result “that promotes effective public policy and administration . . . than the limited knowledge, detachment, and modes of reasoning typically associated with courts of law” (National Corn Growers, at pp. 1336-37 (emphasis deleted), per Wilson J., concurring, citing J. M. Evans et al., Administrative Law: Cases, Text, and Materials (3rd ed. 1989), at p. 414).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-209", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 300", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "When resolving challenges to an administrative decision, courts must also consider the materiality of any alleged errors in the decision-maker’s reasoning. Under reasonableness review, an error is not necessarily sufficient to justify quashing a decision. Inevitably, the weight of an error will depend on the extent to which it affects the decision. An error that is peripheral to the administrative decision-maker’s reasoning process, or overcome by more compelling points advanced in support of the result, does not provide fertile ground for judicial review. Ultimately, the role of the reviewing court is to examine the decision as a whole to determine whether it is reasonable (Dunsmuir, at para. 47; Khosa, at para. 59). Considering the materiality of any impugned errors is a natural part of this exercise, and of reading administrative reasons “together with the outcome” (Newfoundland Nurses, at para. 14).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-210", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 301–302", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Review of the decision as a whole is especially vital when an applicant alleges that an administrative decision contains material omissions. Significantly, and as this Court has frequently emphasized, administrative decision-makers are not required to consider and comment upon every issue raised by the parties in their reasons (Construction Labour Relations v. Driver Iron Inc., [2012] 3 S.C.R. 405, at para. 3; Newfoundland Nurses, at para. 16, citing Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382, at p. 391). Further, a reviewing court is not restricted to the four corners of the written reasons delivered by the decision-maker and should, if faced with a gap in the reasons, look to the record to see if it sheds light on the decision (Williams Lake, at para. 37; Delta Air Lines Inc. v. Lukács, [2018] 1 S.C.R. 6, at para. 23; Newfoundland Nurses, at para. 15; Alberta Teachers’ Association, at paras. 53 and 56).\n\nThe use of the record and other context to supplement a decision-maker’s reasons has been the subject of some academic discussion (see, for example, Mullan, at pp. 69-74). We support a flexible approach to supplementing reasons, which is consistent with the flexible approach used to determine whether administrative reasons must be provided to begin with and sensitive to the “day-to-day realities of administrative agencies” (Baker, at para. 44), which may not be conducive to the production of “archival” reasons associated with court judgments (para. 40, citing Roderick A. Macdonald and David Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-211", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 303", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Some materials that may help bridge gaps in a reviewing court’s understanding of an administrative decision include: the record of any formal proceedings as well as the materials before the decision-maker, past decisions of the administrative body, and policies or guidelines developed to guide the type of decision under review (see Matthew Lewans, “Renovating Judicial Review” (2017), 68 U.N.B.L.J. 109, at pp. 137-38). Reviewing these materials may assist a court in understanding, “by inference”, why an administrative decision-maker reached a particular outcome (Baker, at para. 44; see also Williams Lake, at para. 37; Mills v. Workplace Safety and Insurance Appeals Tribunal (Ont.), 2008 ONCA 436, 237 O.A.C. 71, at paras. 38-39). It may reveal further confirmatory context for a line of reasoning employed by the decision-maker — by showing, for example, that the decision-maker’s understanding of the purpose of its statutory mandate finds support in the provision’s legislative history (Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3, at paras. 25-29). Reviewing the record can also yield responses to the specific challenges raised by an applicant on judicial review, responses that are “consistent with the process of reasoning” applied by the administrative decision-maker (Igloo Vikski, at para. 45). In these ways, reviewing courts may legitimately supplement written reasons without “supplant[ing] the analysis of the administrative body” (Lukács, at para. 24).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-212", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 304–305", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The “adequacy” of reasons, in other words, is not “a stand-alone basis for quashing a decision” (Newfoundland Nurses, at para. 14). As this Court has repeatedly confirmed, reasons must instead “be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (Newfoundland Nurses, at para. 14; Halifax (Regional Municipality) v. Canada (Public Works and Government Services), [2012] 2 S.C.R. 108, at para. 44; Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, at para. 52; Williams Lake, at para. 141, per Rowe J., dissenting, but not on this point). This approach puts substance over form in situations where the basis for a decision by a specialized administrative actor is evident on the record, but not clearly expressed in written reasons. Quashing decisions in such circumstances defeats the purpose of deference and thwarts access to justice by wasting administrative and judicial resources.\n\nIn our view, therefore, if an applicant claims that an administrative decision-maker failed to address a relevant factor in reaching a decision, the reviewing court must consider the submissions and record before the decision-maker, and the materiality of any such omission to the decision rendered. An administrative decision-maker’s failure, for example, to refer to a particular statutory provision or the full factual record before it does not automatically entitle a reviewing court to conduct a de novo assessment of the decision under review. The inquiry must remain focussed on whether the applicant has satisfied the burden of showing that the omission renders the decision reached unreasonable.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-213", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 306", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "We acknowledge that respecting the line between reasonableness and correctness review has posed a particular challenge for judges when reviewing interpretation by administrative decision-makers of their statutory mandates. Judges routinely interpret statutes and have developed a template for how to scrutinize words in that context. But the same deferential approach we have outlined above must apply with equal force to statutory interpretation cases. When reviewing an administrative decision involving statutory interpretation, a court should not assess the decision by determining what, in its own view, would be a reasonable interpretation. Such an approach “imperils deference” (Paul Daly, “Unreasonable Interpretations of Law” (2014), 66 S.C.L.R. (2d) 233, at p. 250).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-214", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 307–308", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "We agree with Justice Evans that “once [a] court embarks on its own interpretation of the statute to determine the reasonableness of the tribunal’s decision, there seems often to be little room for deference” (Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?”, at p. 109; see also Mason, at para. 34; Dyzenhaus, “Dignity in Administrative Law: Judicial Deference in a Culture of Justification”, at p. 108; Daly, “Unreasonable Interpretations of Law”, at pp. 254-55). We add that a de novo interpretation of a statute, conducted as a prelude to “deferential” review, necessarily omits a vital piece of the interpretive puzzle: the perspective of the front-line, specialized administrative body that routinely applies the statutory scheme in question (Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, at p. 304; Paul Daly, “Deference on Questions of Law” (2011), 74 Mod. L. Rev. 694). By placing that perspective at the heart of the judicial review inquiry, courts display respect for administrative specialization and expertise, and for the legislative choice to delegate certain questions to non-judicial bodies.\n\nConversely, by imposing their own interpretation of a statutory provision, courts undermine legislative intent to confide a mandate to the decision-maker. Applying a statute will almost always require some interpretation, making the interpretive mandate of administrative decision-makers inherent to their legislative mandate. The decision-maker who applies the statute has primary responsibility for interpreting the provisions in order to carry out their mandate effectively.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-215", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 309", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Administrative decision-makers performing statutory interpretation should therefore be permitted to be guided by their expertise and knowledge of the practical realities of their administrative regime. In many cases, the “ordinary meaning” of a word or term makes no sense in a specialized context. And in some settings, law and policy are so inextricably at play that they give the words of a statute a meaning unique to a particular specialized context (National Corn Growers, at p. 1336, per Wilson J., concurring; Domtar Inc., at p. 800). Further, not only are statutory provisions sometimes capable of bearing more than one reasonable interpretation, they are sometimes drafted in general terms or with “purposeful ambiguity” in order to permit adaptation to future, unknown circumstances (see Felix Frankfurter, “Some Reflections on the Reading of Statutes” (1947), 47 Colum. L. Rev. 527, at p. 528). These considerations make it all the more compelling that reviewing courts avoid imposing judicial norms on administrative decision-makers or maintaining a dogmatic insistence on formalism. Where a decision-maker can explain its decision adequately, that decision should be upheld (Daly, “Unreasonable Interpretations of Law”, at pp. 233-34, 250 and 254-55).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-216", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 310–311", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Justice Brown’s reasons in Igloo Vikski provide a useful illustration of a properly deferential approach to statutory interpretation. That case involved an interpretation of the Customs Tariff , S.C. 1997, c. 36 , as it applies to hockey goaltender gloves. The Canada Border Services Agency had classified the gloves as “[g]loves, mittens [or] mitts”. Igloo Vikski argued they should have been classified as sporting equipment. The Canadian International Trade Tribunal (“CITT”) confirmed the initial classification. The Federal Court of Appeal reversed the decision.\n\nAcknowledging that the “specific expertise” of the CITT gave it the upper hand over a reviewing court with respect to certain questions of law, Justice Brown determined that the standard of review was reasonableness. Writing for seven other members of the Court, he carefully reviewed the reasons of the CITT and how it had engaged with Igloo Vikski’s arguments before turning to the errors alleged by Igloo Vikski and the Federal Court of Appeal. Conceding that the CITT reasons lacked “perfect clarity”, Justice Brown nevertheless concluded that the Tribunal’s interpretation was reasonable. While he agreed with Igloo Vikski that an alternate interpretation to that given by the CITT was available, the inclusive language of the applicable statute was broad enough to accommodate the CITT’s reasonable interpretation. By beginning with the reasons offered for the interpretation and turning to the challenges mounted against it in light of the surrounding context, Igloo Vikski provides an excellent example of respectful and properly deferential judicial review.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-217", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 312", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "We conclude our discussion of reasonableness review by addressing cases where reasons are neither required nor available for judicial review. In these circumstances, a reviewing court should remain focussed on whether the decision has been shown to be unreasonable. The reasonableness of the decision may be justified by past decisions of the administrative body (see Edmonton East, at paras. 38 and 44-46; Alberta Teachers’ Association, at paras. 56-64). In other circumstances, reviewing courts may have to assess the reasonableness of the outcome in light of the procedural context surrounding the decision (see Law Society of British Columbia v. Trinity Western University, [2018] 2 S.C.R. 293, at paras. 51-56; Edmonton East, at paras. 48‑60; Catalyst Paper Corp., at paras. 32-36). In all cases, the question remains whether the challenging party has demonstrated that a decision is unreasonable.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-218", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 313–315", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In sum, reasonableness review is based on deference to administrative decision-makers and to the legislative intention to confide in them a mandate. Deference must inform the attitude of a reviewing court and the nature of its analysis: the court does not ask how it would have resolved the issue before the administrative decision-maker but instead evaluates whether the decision-maker acted reasonably. The reviewing court starts with the reasons offered for the administrative decision, read in light of the surrounding context and based on the grounds advanced to challenge the reasonableness of the decision. The reviewing court must remain focussed on the reasonableness of the decision viewed as a whole, in light of the record, and with attention to the materiality of any alleged errors to the decision-maker’s reasoning process. By properly conducting reasonableness review, judges provide careful and meaningful oversight of the administrative justice system while respecting its legitimacy and the perspectives of its front-line, specialized decision-makers. Application to Mr. Vavilov\n\nAlexander Vavilov challenges the Registrar of Citizenship’s decision to cancel his citizenship certificate. The Registrar concluded that Mr. Vavilov was not a Canadian citizen, and therefore not entitled to a certificate of Canadian citizenship because, although he was born in Canada, his parents were “other representative[s] or employee[s] in Canada of a foreign government” within the meaning of s. 3(2) (a) of the Citizenship Act , R.S.C. 1985, c. C-29 .\n\nThe first issue is the applicable standard of review. We agree with the majority that reasonableness applies.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-219", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 316–318", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The second issue is whether the Registrar was reasonable in concluding that the exception to Canadian citizenship in s. 3(2)(a) applies not only to parents who enjoy diplomatic privileges and immunities, but also to intelligence agents of a foreign government. The onus is therefore on Mr. Vavilov to satisfy the reviewing court that the decision was unreasonable. In our view, he has met that onus.\n\nMr. Vavilov was born in Canada in 1994. His Russian parents, Elena Vavilova and Andrey Bezrukov, entered Canada at some point prior to his birth, assumed the identities of two deceased Canadians and fraudulently obtained Canadian passports. After leaving Canada to live in France, Mr. Vavilov and his family moved to the United States. While in the United States, Mr. Vavilov’s parents became American citizens under their assumed Canadian identities. Mr. Vavilov and his older brother also obtained American citizenship.\n\nIn June 2010, agents of the United States Federal Bureau of Investigation arrested Mr. Vavilov’s parents and charged them with conspiracy to act as unregistered agents of a foreign government and to commit money laundering. Mr. Vavilov’s parents pleaded guilty to the conspiracy charges in July 2010 and were returned to Russia in a spy swap. Around the same time, Mr. Vavilov and his brother travelled to Russia. The American government subsequently revoked Mr. Vavilov’s passport and citizenship. In December 2010, he was issued a Russian passport and birth certificate.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-220", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 319–321", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "From 2010 to 2013, Mr. Vavilov repeatedly sought a Canadian passport. In December 2011, he obtained an amended Ontario birth certificate, showing his parents’ true names and places of birth. Using this birth certificate, Mr. Vavilov applied for and received a certificate of Canadian citizenship in January 2013. Relying on these certificates, Mr. Vavilov applied for an extension of his Canadian passport in early 2013. On July 18, 2013, the Registrar wrote to Mr. Vavilov, informing him that there was reason to believe the citizenship certificate had been erroneously issued and asking him for additional information.\n\nOn April 22, 2014, Mr. Vavilov provided extensive written submissions to the Registrar. He argued that the narrow exception set out in s. 3(2) of the Act does not apply to him. Because he was born in Canada, he is entitled to Canadian citizenship. Mr. Vavilov also argued that the Registrar had failed to respect the requirements of procedural fairness.\n\nThe Registrar wrote to Mr. Vavilov on August 15, 2014, cancelling his certificate of Canadian citizenship. In her view, because Mr. Vavilov met the two statutory restrictions in s. 3(2) of the Act, he was not a Canadian citizen. First, when Mr. Vavilov was born in Canada, neither of his parents were Canadian citizens or lawfully admitted to Canada for permanent residence. Second, as unofficial agents working for Russia’s Foreign Intelligence Service, Mr. Vavilov’s parents were “other representative[s] or employee[s] in Canada of a foreign government” within the meaning of s. 3(2)(a).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-221", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 322–324", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Federal Court ([2016] 2 F.C.R. 39) dismissed Mr. Vavilov’s application for judicial review. It found that the Registrar had satisfied the requirements of procedural fairness and, applying a correctness standard, determined that the Registrar’s interpretation of s. 3(2)(a) was correct. The Federal Court then reviewed the application of s. 3(2)(a) on a reasonableness standard and concluded that the Registrar had reasonably determined that Mr. Vavilov’s parents were working in Canada as undercover agents of the Russian government at the time of his birth.\n\nThe Federal Court of Appeal ([2018] 3 F.C.R. 75) allowed the appeal and quashed the Registrar’s decision to cancel Mr. Vavilov’s citizenship certificate. Writing for the majority, Stratas J.A. agreed that the requirements of procedural fairness were met but held that the Registrar’s interpretation of s. 3(2)(a) was unreasonable. In his view, only those who enjoy diplomatic privileges and immunities fall within the exception to citizenship found in s. 3(2)(a). Justice Stratas reached this conclusion after considering the context and purpose of the provision, its legislative history and international law principles related to citizenship and diplomatic privileges and immunities.\n\nAs a general rule, administrative decisions are to be judicially reviewed for reasonableness. None of the correctness exceptions apply to the Registrar’s interpretation of the Act in this case. As such, the standard of review is reasonableness.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-222", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 325–326", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The following provisions of the Citizenship Act are relevant to this appeal: Persons who are citizens 3 (1) Subject to this Act, a person is a citizen if (a) the person was born in Canada after February 14, 1977; . . . Not applicable to children of foreign diplomats, etc. (2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was (a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government; (b) an employee in the service of a person referred to in paragraph (a); or (c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a). The general rule embodied in s. 3(1)(a) of the Act is that persons born in Canada are Canadian citizens. Section 3(2) sets out an exception to this rule. As such, if s. 3(2) applies to Mr. Vavilov, he was never a Canadian citizen.\n\nThe specific issue in this case is whether the Registrar’s interpretation of the statutory exception to citizenship was reasonable. Reasonableness review entails deference to the decision-maker, and we begin our analysis by examining the reasons offered by the Registrar in light of the context and the grounds argued.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-223", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 327–328", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "In this case, the Registrar’s letter to Mr. Vavilov summarized the key points underlying her decision. In concluding that Mr. Vavilov was not entitled to Canadian citizenship, the Registrar adopted the recommendations of an analyst employed by Citizenship and Immigration Canada. As such, the analyst’s report properly forms part of the reasons supporting the Registrar’s decision.\n\nThe analyst’s report sought to answer the question of whether Mr. Vavilov was erroneously issued a certificate of Canadian citizenship. The report identifies the key question in this case as being whether either of Mr. Vavilov’s parents was a “representative” or “employee” of a foreign government within the meaning of s. 3(2)(a). Much of the report relates to matters not disputed in this appeal, including the legal status of Mr. Vavilov’s parents in Canada and their employment as Russian intelligence agents.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-224", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 329–330", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The analyst began her analysis with the text of s. 3(2)(a). In concluding that the provision operates to deny Mr. Vavilov Canadian citizenship, she set out two textual arguments. First, she compared the current version of s. 3(2)(a) to an earlier iteration of the exception found in s. 5(3) of the Canadian Citizenship Act, R.S.C. 1970, c. C-19: Not applicable to children of foreign diplomats, etc. (3) Subsection (1) does not apply to a person if, at the time of that person’s birth, his responsible parent (a) is an alien who has not been lawfully admitted to Canada for permanent residence; and (b) is (i) a foreign diplomatic or consular officer or a representative of a foreign government accredited to Her Majesty, (ii) an employee of a foreign government attached to or in the service of a foreign diplomatic mission or consulate in Canada, or (iii) an employee in the service of a person referred to in subparagraph (i).\n\nThe analyst stated that the removal of references to official accreditation or a diplomatic mission indicate that the previous exception was narrower than s. 3(2)(a). She then pointed out that the definition of “diplomatic or consular officer” in s. 35(1) of the Interpretation Act , R.S.C. 1985, c. I-21 , clearly associates these individuals with diplomatic positions. Because the current version of s. 3(2)(a) does not link “other representative or employee in Canada of a foreign government” to a diplomatic mission, the analyst determined “it is reasonable to maintain that this provision intends to encompass individuals not included in the definition of ‘diplomatic and consular staff.’” Finally, the analyst stated that the phrase “other representative or employee in Canada of a foreign government” has not been previously interpreted by a court.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-225", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 331–333", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Beyond the analyst’s report, there is little in the record to supplement the Registrar’s reasons. There is no evidence about whether the Registrar has previously applied this provision to individuals like Mr. Vavilov, whose parents did not enjoy diplomatic privileges and immunities. Neither does there appear to be any internal policy, guideline or legal opinion to guide the Registrar in making these types of decisions.\n\nIn challenging the Registrar’s decision, Mr. Vavilov bears the onus of demonstrating why it is not reasonable. Before this Court, Mr. Vavilov submitted that the analyst focussed solely on the text of the exception to citizenship. In his view, had the broader objectives of s. 3(2)(a) been considered, the analyst would have concluded that “other representative” or “employee” only applies to individuals who benefit from diplomatic privileges and immunities.\n\nIn his submissions before the Registrar, Mr. Vavilov offered three reasons why the text of s. 3(2) must be read against the backdrop of Canadian and international law relating to the roles and functions of diplomats.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-226", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 334–335", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "First, Mr. Vavilov explained that s. 3(2)(a) should be read in conjunction with the Foreign Missions and International Organizations Act , S.C. 1991, c. 41 (“FMIOA ”). This statute incorporates into Canadian law aspects of the Vienna Convention on Diplomatic Relations, Can. T.S. 1966 No. 29, Sched. I to the FMIOA , and the Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25, Sched. II to the FMIOA , which deal with diplomatic privileges and immunities. He submitted that s. 3(2) denies citizenship to children of diplomats because diplomatic privileges and immunities, including immunity from criminal prosecution and civil liability, are inconsistent with the duties and responsibilities of a citizen. Because Mr. Vavilov’s parents did not enjoy such privileges and immunities, there would be no purpose in excluding their children born in Canada from becoming Canadian citizens.\n\nSecond, Mr. Vavilov provided the Registrar with Hansard committee meeting minutes such as the comments of the Hon. J. Hugh Faulkner, Secretary of State, when introducing the amendments to s. 3(2), who explained that the provision had been redrafted to narrow the exception to citizenship.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-227", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 336–337", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "Third, Mr. Vavilov cited case law, arguing that: (i) the exception to citizenship should be narrowly construed because it takes away substantive rights (Brossard (Town) v. Quebec Commission des droits de la personne, [1988] 2 S.C.R. 279, at p. 307); (ii) s. 3(2)(a) must be interpreted functionally and purposively (Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, at para. 8); and (iii) because Mr. Vavilov’s parents were not immune from criminal or civil proceedings, they fall outside the scope of s. 3(2) (Greco v. Holy See (State of the Vatican City), [1999] O.J. No. 2467 (QL) (S.C.J.); R. v. Bonadie (1996), 109 C.C.C. (3d) 356 (Ont. C.J.); Al-Ghamdi v. Canada (Minister of Foreign Affairs and International Trade) (2007), 64 Imm. L.R. (3d) 67 (F.C.)).\n\nThe Federal Court’s decision in Al-Ghamdi, a case which challenged the constitutionality of s. 3(2)(a), was particularly relevant. In that case, Shore J. wrote that s. 3(2)(a) only applies to the “children of individuals with diplomatic status” (paras. 5 and 65). Justice Shore also stated that “[i]t is precisely because of the vast array of privileges accorded to diplomats and their families, which are by their very nature inconsistent with the obligations of citizenship, that a person who enjoys diplomatic status cannot acquire citizenship” (para. 63).", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-228", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "para 338", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Registrar’s reasons failed to respond to Mr. Vavilov’s extensive and compelling submissions about the objectives of s. 3(2)(a). It appears that the analyst misunderstood Mr. Vavilov’s arguments on this point. In discussing the scope of s. 3(2), she wrote, “[c]ounsel argues that CIC [Citizenship and Immigration Canada] cannot invoke subsection 3(2) because CIC has not requested or obtained verification with the Foreign Affairs Protocol to prove that [Mr. Vavilov’s parents] held diplomatic or consular status with the Russian Federation while they resided in Canada.” It thus appears that the analyst did not recognize that Mr. Vavilov’s argument was more fundamental in nature — namely, that the objectives of s. 3(2) require the terms “other representative” and “employee” to be read narrowly. During discovery, in fact, the analyst acknowledged that her research did not reveal a policy purpose behind s. 3(2)(a) or why the phrase “other representative or employee” was included in the Act. It also appears that the analyst did not understand the potential relevance of the Al-Ghamdi decision, since her report stated that “[t]he jurisprudence that does exist only relates to individuals whose parents maintained diplomatic status in Canada at the time of their birth.”", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-229", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 339–340", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Registrar, in the end, interpreted s. 3(2)(a) broadly, based on the analyst’s purely textual assessment of the provision, including a comparison with the text of the previous version. This reading of “other representative or employee” was only reasonable if the text is read in isolation from its objective. Nothing in the history of this provision indicates that Parliament intended to widen its scope. Rather, as Mr. Vavilov points out, the modifications made to s. 3(2) in 1976 appear to mirror those embodied in the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, which were incorporated into Canadian law in 1977. The judicial treatment of this provision, in particular the statements in Al-Ghamdi about the narrow scope of s. 3(2)(a) and the inconsistency between diplomatic privileges and immunities and citizenship, also points to the need for a narrow interpretation of the exception to citizenship.\n\nIn addition, as noted by the majority of the Federal Court of Appeal, the text of s. 3(2)(c) can be seen as undermining the Registrar’s interpretation. That provision denies citizenship to children born to individuals who enjoy “diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a)”. As Stratas J.A. noted, this language suggests that s. 3(2)(a) covers only those “employee[s] in Canada of a foreign government” who have diplomatic privileges and immunities.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-18078-230", + "doc_type": "caselaw", + "act_code": "2019 SCC 65", + "act_short": "Vavilov", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Vavilov", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65", + "marginal_note": "paras 341–343", + "heading": "Standard of review on judicial review; the reasonableness standard for administrative decisions", + "part": "Supreme Court of Canada", + "division": "", + "text": "By ignoring the objectives of the provision, the Registrar rendered an unreasonable decision. In particular, the arguments supporting a reading of s. 3(2) that is restricted to those who have diplomatic privileges and immunities, likely would have changed the outcome in this case.\n\nMr. Vavilov has satisfied us that the Registrar’s decision is unreasonable. As a result, the Court of Appeal properly quashed the Registrar’s decision to cancel Mr. Vavilov’s citizenship certificate, and he is thus entitled to a certificate of Canadian citizenship.\n\nWe would therefore dismiss the appeal with costs to Mr. Vavilov throughout. Appeal dismissed with costs throughout.", + "current_to": "2019-12-19", + "last_amended": "", + "history": "Also reported: [2019] 4 SCR 653", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" + }, + { + "id": "scc-20081-1", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 1–2", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "These appeals require the Court to apply the framework for judicial review developed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, to two administrative decisions involving a question of statutory interpretation in the immigration context.\n\nThe statutory provision at issue, s. 34(1) (e) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), provides that permanent residents and foreign nationals are inadmissible to Canada on “security grounds” for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. The key point of disagreement among the administrative decision makers and courts below is whether the “acts of violence” listed as “security grounds” in s. 34(1)(e) require a link to national security or the security of Canada, or whether s. 34(1)(e) applies to acts of violence more broadly even without such a link.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-2", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 3–4", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Both administrative decisions under review interpreted s. 34(1)(e) as not requiring the acts of violence to have a link to national security or the security of Canada. In the first administrative decision, the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board of Canada (“IRB”) ruled that Mr. Earl Mason, a foreign national, could be found inadmissible under s. 34(1)(e) if his alleged violent conduct were established. Mr. Mason allegedly shot a gun and wounded two people when he was assaulted during a fight at a bar. Charges against him were stayed and he was not convicted of any criminal offence. In the second administrative decision, the Immigration Division (“ID”) of the IRB followed the IAD’s interpretation of s. 34(1)(e) in Mr. Mason’s case and ruled that Mr. Seifeslam Dleiow, a foreign national, was inadmissible under s. 34(1)(e) for acts of violence against two intimate partners. It was not alleged that either Mr. Mason or Mr. Dleiow engaged in acts of violence with a link to national security or the security of Canada.\n\nThe Federal Court allowed Mr. Mason and Mr. Dleiow’s applications for judicial review. In Mr. Mason’s case, in reasons released before this Court released Vavilov, the Federal Court ruled that it was unreasonable to interpret s. 34(1)(e) as applying to acts of violence without a nexus to national security. The Federal Court followed that approach in Mr. Dleiow’s case. Thus, neither Mr. Mason nor Mr. Dleiow was inadmissible. In both cases, the Federal Court also certified serious questions of general importance, so that the Federal Court of Appeal could consider whether it was reasonable to interpret s. 34(1)(e) as not requiring proof of conduct having a nexus to national security or the security of Canada.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-3", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 5–7", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Federal Court of Appeal allowed both appeals. In reasons addressing both cases — released after this Court released Vavilov — the Court of Appeal ruled that the IAD and ID had reasonably interpreted s. 34(1) (e) of the IRPA as not requiring a nexus to national security or the security of Canada.\n\nMr. Mason and Mr. Dleiow now appeal to this Court. Two issues arise. First, what standard of review should the reviewing courts have applied when reviewing the decisions of the IAD in Mr. Mason’s case and the ID in Mr. Dleiow’s case? Second, how should that standard of review have been applied in the circumstances?\n\nIn Vavilov, this Court revised the framework for determining the standard of review. The Court established a presumption that the standard of review of the merits of an administrative decision is reasonableness, subject to limited exceptions based on legislative intent or when required by the rule of law (paras. 10 and 17). The revised framework seeks to maintain the rule of law, while respecting a legislature’s intent to entrust certain decisions to administrative decision makers rather than courts (paras. 2 and 14). It also aims to bring simplicity, coherence, and predictability to the law on the standard of review and to eliminate the unwieldy exercise of determining the standard of review based on contextual factors, as had been required by this Court’s jurisprudence following Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Vavilov, at paras. 7 and 10).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-4", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 8–9", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Vavilov also explained how a court should conduct reasonableness review. This Court stressed that reasonableness review and correctness review are methodologically distinct (para. 12). Reasonableness review starts from a posture of judicial restraint and focusses on “the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place” (paras. 15 and 24). When an administrative decision maker is required to provide reasons for its decision, reasonableness review requires a “sensitive and respectful, but robust” evaluation of the reasons provided (para. 12). A reviewing court must take a “reasons first” approach that evaluates the administrative decision maker’s justification for its decision (para. 84). An administrative decision will be reasonable if it “is based on an internally coherent and rational chain of analysis and . . . is justified in relation to the facts and law that constrain the decision maker” (para. 85). This Court also affirmed “the need to develop and strengthen a culture of justification in administrative decision making” (para. 2).\n\nApplying the Vavilov framework to these appeals, I conclude that the standard of review of the administrative decisions at issue is reasonableness. No established exception to the presumption of reasonableness review applies, nor should any new exception be created on the basis that the appeals involved a serious question of general importance certified for appeal to the Federal Court of Appeal under s. 74 (d) of the IRPA . The certified question regime is a statutory mechanism for the Federal Court to provide for an appeal from a judicial review decision in certain circumstances.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-5", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 10–12", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Both administrative decisions were unreasonable. In particular, the IAD in Mr. Mason’s case, whose interpretation of s. 34(1)(e) was followed in Mr. Dleiow’s case, failed to consider three significant legal constraints bearing on its decision. First, the IAD failed to address critical points of statutory context that Mr. Mason had raised in his submissions to the IAD. Second, the IAD failed to address the potentially broad consequences of its interpretation, which again Mr. Mason had raised in his submissions. These omissions involved significant failures of “responsive justification” that would cause a reviewing court to lose confidence in the IAD’s decision. Third, the IAD failed to interpret and apply s. 34(1)(e) in compliance with international human rights instruments to which Canada is a signatory — specifically, the obligation of non-refoulement under Article 33(1) of the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”) — contrary to the express direction in s. 3(3) (f) of the IRPA that it must do so. The IAD’s failure to consider these three legal constraints rendered its decision unreasonable.\n\nIn these cases, the relevant legal constraints point overwhelmingly to a single reasonable interpretation of s. 34(1)(e) — a person can be found inadmissible under s. 34(1)(e) only if they engage in acts of violence with a nexus to national security or the security of Canada.\n\nAs a result, I would allow both appeals, set aside the judgments of the Federal Court of Appeal, allow the applications for judicial review, and quash the administrative decisions. II. Facts A. Mr. Earl Mason", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-6", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 13–14", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Earl Mason is a citizen of Saint Lucia and a “foreign national” in Canada — that is, he is neither a Canadian citizen nor a permanent resident (IRPA , s. 2(1) , “foreign national”). He is married to a Canadian citizen and has two daughters in Canada. He entered Canada in June 2010 and has remained here as a foreign national. He claimed refugee protection when he arrived in Canada, but he later withdrew this claim when he applied for permanent residence with his wife’s sponsorship.\n\nThe following allegations were made against Mr. Mason in the inadmissibility proceedings under review. In May 2012, Mr. Mason had an argument with a man at a concert in a bar in Surrey, British Columbia. The man broke a beer bottle over Mr. Mason’s head, and Mr. Mason responded by drawing a gun from his waistband and firing it eight times, wounding his assailant and another man. In May 2014, Mr. Mason was charged with two counts of attempted murder and two counts of discharging a firearm with intent to wound or disfigure. The shooting was not linked to terrorism or organized crime. In 2015, the charges were stayed because of delay. As a result, Mr. Mason was not found guilty of any criminal offence.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-7", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 15–16", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The IRPA sets out several grounds on which a permanent resident or foreign national may be found inadmissible, and thus may be denied entry to or be required to leave Canada (ss. 34 to 42). In April 2016, a Canada Border Services Agency (“CBSA”) officer prepared a report alleging that Mr. Mason was inadmissible on “security grounds” under s. 34(1) (e) of the IRPA , which 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”. Section 34(1) states: Security 34 (1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests; (b) engaging in or instigating the subversion by force of any government; (b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).\n\nIn May 2016, a delegate of the Minister of Public Safety and Emergency Preparedness referred the CBSA’s inadmissibility report to the ID for an admissibility hearing. B. Mr. Seifeslam Dleiow", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-8", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 17–18", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Seifeslam Dleiow is a citizen of Libya and a foreign national in Canada. He entered Canada in June 2012 on a study permit, which expired in 2014. In 2015, he made a claim for refugee protection. In October 2017, the Refugee Protection Division of the IRB refused his claim, and in October 2018, the Refugee Appeal Division dismissed his appeal.\n\nIn September 2018, a CBSA officer prepared a report alleging that Mr. Dleiow was inadmissible on security grounds under s. 34(1)(e). The report alleged that since arriving in Canada, Mr. Dleiow had engaged in acts of violence against intimate partners and other persons. Criminal charges flowing from these incidents were stayed, except for 3 charges: being unlawfully in a dwelling house with intent to commit an indictable offence, mischief under $5,000, and uttering threats to cause death or bodily harm. Mr. Dleiow pleaded guilty to these charges and received a conditional discharge. A delegate of the Minister of Public Safety and Emergency Preparedness then referred the CBSA’s inadmissibility report to the ID for an admissibility hearing. III. Decisions Below A. Immigration Division Decision (Mr. Mason), 2018 CanLII 57522", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-9", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 19–20", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The ID addressed a preliminary question of law as to whether Mr. Mason’s alleged conduct, if proven, could be a ground of inadmissibility under s. 34(1)(e). The ID ruled that a “security groun[d]” under s. 34(1) means a threat to the security of Canada or another country, and that the act of violence in question must have some connection to a threat to the security of Canada. In the ID’s view, Mr. Mason’s alleged conduct involved “mere criminal offences”, which “although very serious”, lacked “any element that would elevate them to security grounds”, and thus s. 34(1)(e) could not apply (para. 24). B. Immigration Appeal Division Decision (Mr. Mason), 2019 CanLII 55171\n\nThe Minister of Public Safety and Emergency Preparedness appealed the ID’s decision in Mr. Mason’s case to the IAD, which allowed the Minister’s appeal, set aside the ID’s decision, and referred the matter back for a full hearing on the merits. The IAD concluded that inadmissibility under s. 34(1)(e) does not require a link to national security or the security of Canada. In the IAD’s view, “security” under s. 34(1)(e) relates 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” (para. 37). C. Immigration Division Decision (Mr. Dleiow), 2019 CanLII 129531", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-10", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 21–22", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Mr. Dleiow’s case, the ID saw no basis to depart from the IAD’s interpretation of s. 34(1)(e) in Mr. Mason’s case, and therefore affirmed that s. 34(1)(e) does not require a link to national security or the security of Canada. The ID also heard evidence and concluded that Mr. Dleiow was inadmissible because he had engaged in violent acts against two intimate partners, which there were reasonable grounds to believe had endangered their safety. The ID based this conclusion on a guilty plea for acts relating to one intimate partner, and on testimony and police occurrence reports relating to the other intimate partner. As a result, the ID ruled that Mr. Dleiow was inadmissible and issued a deportation order. D. Federal Court Decision (Mr. Mason), 2019 FC 1251, [2020] 2 F.C.R. 3 (Grammond J.)\n\nThe Federal Court granted Mr. Mason’s application for judicial review of the IAD’s decision. The court held that the IAD’s interpretation of s. 34(1) (e) of the IRPA was unreasonable because it disregarded the structure of the Act and rendered meaningless statutory provisions for inadmissibility based on criminality. In the Federal Court’s view, s. 34(1)(e) requires a link to national security.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-11", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 23", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Federal Court — whose reasons were released before this Court released Vavilov — outlined how a reviewing court should evaluate the reasonableness of an administrative decision maker’s interpretation of a statute. In the Federal Court’s view, a reviewing court must ensure that an administrative decision maker did not overlook a very strong argument — a “knock-out punch”, that is, an interpretation that is internally consistent, withstands scrutiny, and is not met by a countervailing interpretation of similar force — or choose an interpretation when the interpretive “clues” point overwhelmingly in the other direction.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-12", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 24", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Federal Court ruled that the IAD’s interpretation of s. 34(1)(e) was unreasonable because it conflicted with the broader structure of the IRPA , thus undermining Parliament’s intent. In the court’s view, this structural argument was a “knock-out punch”. The IAD’s decision upset the carefully crafted structure of the IRPA by including under s. 34(1)(e) a vast range of conduct that “would or might endanger the lives or safety of persons in Canada”. This would thwart Parliament’s intent by bringing under the most serious category of inadmissibility conduct falling below the thresholds for less serious categories of inadmissibility, and it would discard Parliament’s choice under s. 36 of the IRPA to require a conviction when criminal conduct was committed in Canada. Section 36(1) and (2) of the IRPA provide for inadmissibility based on “serious criminality” and “criminality” as follows: Serious criminality 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-13", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 24–26", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Criminality (2) A foreign national is inadmissible on grounds of criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence; (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament; (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.\n\nThe Federal Court found all the countervailing points of interpretive context unpersuasive and ruled that only one reasonable interpretation was available. It therefore quashed the IAD’s decision and restored the ID’s decision.\n\nThe Federal Court certified the following serious question 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”? E. Federal Court Decision (Mr. Dleiow), 2020 FC 59 (Barnes J.)", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-14", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 27–29", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Federal Court allowed Mr. Dleiow’s application for judicial review of the ID’s decision. The court applied the Federal Court’s reasoning in Mr. Mason’s case for reasons of comity, set aside the ID’s decision and ordered the matter be reconsidered on the merits by a different decision maker. The court also certified the same serious question of general importance. F. Federal Court of Appeal (Mr. Mason and Mr. Dleiow), 2021 FCA 156, [2022] 1 F.C.R. 3 (Stratas J.A., Rennie and Mactavish JJ.A. concurring)\n\nThe Federal Court of Appeal decided the appeals in Mr. Mason’s and Mr. Dleiow’s cases together, after this Court had released Vavilov. The court held that the administrative decisions reasonably interpreted s. 34(1)(e) as not requiring a nexus with national security or the security of Canada.\n\nThe Court of Appeal began by discussing how a court should conduct reasonableness review. The court said that “Vavilov tells us much but it leaves some things unclear” (para. 9). The court cautioned that a reviewing court 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” (para. 17). The Court of Appeal also criticized the Federal Court’s “knock-out punch” approach in Mr. Mason’s case as involving disguised correctness review.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-15", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 30", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Court of Appeal concluded that the IAD was alive to the essential elements of s. 34(1)(e)’s text, context, and purpose, and saw no omitted aspects that would cause a loss of confidence in the outcome. It rejected Mr. Mason’s argument that reading s. 34(1)(e) without a nexus to national security is inconsistent with the broader statutory context. The court ruled that the IAD reasonably concluded that the conduct captured by s. 34(1)(e), which speaks of the danger posed to the “lives or safety” of persons in Canada, is only a small subset of what would be considered serious criminality under s. 36 of the IRPA . Sections 34 and 36 address two different matters — conduct and convictions, respectively (para. 55). Section 36 is much broader, and applies to much non-violent criminal behaviour; s. 34(1)(e) is narrower, and applies only to acts of violence. The court noted that when the IAD said that s. 34(1)(e) is not absurdly broad because the conduct captured by the provision is “narrowly defined”, this could only mean that it interpreted “safety” in s. 34(1)(e) as “something approaching the level of a threat to life, not just minor harm” (para. 57). The court stated that although the IAD did not address certain contextual arguments, this failure was not a fundamental gap and did not cause the court to lose confidence in its outcome so as to make its decision unreasonable.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-16", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 31–35", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "In contending that s. 34(1)(e) requires a nexus with national security or the security of Canada, Mr. Mason also invoked the Refugee Convention and the 1967 Protocol Relating to the Status of Refugees, Can. T.S. 1969 No. 29 (“Refugee Protocol”). The Court of Appeal declined to entertain this argument because it viewed this as a new issue that should have been raised before the IAD, and because “certain background documents and other instruments needed to understand any international obligations” were not in evidence (para. 74).\n\nThe Court of Appeal concluded that some elements of s. 34(1)(e)’s text, context, and purpose favoured the need for a nexus with national security or the security of Canada, while others did not. It stated that “the issue of legislative interpretation is best described as one where the issue is open to some debate” (para. 76).\n\nIn the result, the Court of Appeal ruled that it is reasonable to interpret s. 34(1) (e) of the IRPA in a manner that does not require proof of conduct with a nexus to “national security” or “the security of Canada”. The court therefore allowed the appeals, set aside the judgments of the Federal Court, and dismissed the applications for judicial review. IV. Issues\n\nThese appeals raise two issues: (1) What is the appropriate standard of review of the administrative decisions at issue? (2) Was that standard of review applied properly in these cases? V. Analysis\n\nIn what follows, I first address the applicable standard of review and explain why it is reasonableness. I then summarize Vavilov’s guidance on conducting reasonableness review and apply that guidance to these cases. I conclude that the administrative decision makers’ reasons involved failures of justification that made their decisions unreasonable. A. The Standard of Review", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-17", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 36", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The first issue concerns the appropriate standard of review. As this Court has noted, “[a] reviewing judge’s selection and application of the standard of review is reviewable for correctness” (Northern Regional Health Authority v. Horrocks, 2021 SCC 42, at para. 10, citing Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45‑47). An appellate court must “ste[p] into the shoes” of the lower court and focus on the administrative decision under review (Agraira, at para. 46, citing Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247, per Deschamps J., dissenting). On this approach, an appellate court “accords no deference to the reviewing judge’s application of the standard of review”, but rather “performs a de novo review of the administrative decision” (Horrocks, at para. 10, citing D. J. M. Brown, with the assistance of D. Fairlie, Civil Appeals (loose-leaf), at § 14:45). None of these principles was changed by this Court’s decision in Vavilov. As a result, the issue is whether the Federal Court selected the correct standard of review and applied it properly (Agraira, at para. 47).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-18", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 37", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Before this Court, the appellant Mr. Mason and the intervener the Canadian Association of Refugee Lawyers assert that the standard of review is correctness. Citing pre-Vavilov jurisprudence, they say that because the appeal to the Federal Court of Appeal involved a “serious question of general importance” certified under s. 74 (d) of the IRPA , it would be “incoherent” if the standard were not correctness (A.F., at para. 49, citing Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 43). The certified question regime under s. 74 (d) of the IRPA provides a mechanism for the Federal Court to provide for a statutory appeal of a judicial review decision that raises a serious question that is dispositive of the appeal, transcends the interests of the parties, and raises an issue of broad significance or general importance (Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674, at para. 46; Canada (Immigration and Citizenship) v. Laing, 2021 FCA 194, at para. 11 (CanLII); see also Canada (Public Safety and Emergency Preparedness) v. XY, 2022 FCA 113, 89 Imm. L.R. (4th) 173, at para. 7). The appellant Mr. Mason and the intervener the Canadian Association of Refugee Lawyers say that the certified question regime “weighs in favour of a correctness standard” and “evinces a particular concern that questions of general importance be appropriately resolved” (A.F., at para. 49, citing Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 23; see also I.F., at paras. 4‑10).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-19", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 38–39", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "I respectfully disagree with this submission. In my view, the standard of review of the administrative decisions is reasonableness. This conclusion rests on three propositions: (1) Vavilov established that the standard of review of the merits of an administrative decision is presumptively reasonableness; (2) no established exception to the presumption of review for reasonableness applies in these cases; and (3) the certified question regime under s. 74 (d) of the IRPA does not displace the presumption of reasonableness review and warrant recognition of a new category of correctness. I will address each point in turn. (1) The Standard of Review Is Presumptively Reasonableness\n\nIn Vavilov, this Court established a presumption that when a court reviews the merits of an administrative decision, the standard of review is reasonableness (para. 16; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at para. 27). This presumption is rebutted in two types of situations, which together provide six categories of correctness review (Vavilov, at paras. 17 and 69; Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, at para. 40). The first type of situation is where the legislature has indicated that it intends a different standard or set of standards to apply, and the second type of situation is where the rule of law requires that the standard of correctness be applied (Vavilov, at para. 17). Vavilov thus sets out a “general rule” of reasonableness review, “subject to limited exceptions” (D. Mullan, “Reasonableness Review Post-Vavilov: An ‘Encomium for Correctness’ or Deference As Usual?” (2021), 23 C.L.E.L.J. 189, at p. 200).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-20", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 40–42", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The first situation, based on legislative intent, provides for two categories of correctness review: when the legislature explicitly prescribes the standard of review, and when it provides for an appeal from an administrative decision to a court, thus signalling that appellate standards of review apply (Vavilov, at para. 17; Canada Post, at para. 27).\n\nAs for the second situation, Vavilov set out three categories of questions that the rule of law requires to be reviewed on a standard of correctness: constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies (para. 17; Canada Post, at para. 27).\n\nAt the time it was rendered, Vavilov thus recognized five categories of correctness review: (1) legislated standards of review; (2) statutory appeal mechanisms; (3) constitutional questions; (4) general questions of law of central importance to the legal system as a whole; and (5) questions related to the jurisdictional boundaries between two or more administrative bodies (paras. 17 and 69).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-21", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 43–45", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "At the same time, Vavilov did not definitively foreclose the possibility of recognizing new categories of correctness “[i]n rare and exceptional circumstances . . . when applying reasonableness would undermine legislative intent or the rule of law in a manner analogous to the five correctness categories” already identified (Society of Composers, at para. 27; Vavilov, at para. 70). This Court recently recognized a sixth category of correctness review in Society of Composers, a case involving copyright royalties for works accessed online: (6) “when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute” (para. 28). The Court noted that both the Copyright Board and the courts have concurrent first instance jurisdiction regarding the interpretation of the Copyright Act , R.S.C. 1985, c. C-42 , which signals “a legislative intent for judicial involvement” (para. 31) and highlights the need for consistent and definitive interpretation of the Copyright Act to maintain the rule of law (paras. 33‑35).\n\nThe presumption of reasonableness review and the limited circumstances in which it is rebutted provide a comprehensive framework for determining the standard of review. This framework brings simplicity, coherence, and predictability to the law on the standard of review, since reviewing courts need no longer conduct an unwieldy “contextual” inquiry to identify the appropriate standard of review, as had been the case in the period before Vavilov (Vavilov, at paras. 7 and 17). (2) No Established Exception to the Presumption Applies\n\nNone of the established exceptions to the presumption of reasonableness review applies in these cases.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-22", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 46", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "First, the legislature has not explicitly prescribed the standard of review or provided a statutory appeal mechanism from an administrative decision to a court. The present cases proceeded to the Federal Court on applications for judicial review under s. 72(1) of the IRPA , which does not prescribe the standard of review.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-23", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 47", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, the standard of correctness is not required based on the rule of law. The proper interpretation of s. 34(1) (e) of the IRPA is not a “general question of law of central importance to the legal system as a whole” under Vavilov (paras. 58‑62). Such “general questions of law” require uniform and consistent answers because of their impact on the administration of justice as a whole or for other institutions of government (para. 59). Examples of general questions of law include questions with legal implications for many other statutes or for the proper functioning of the justice system as a whole (paras. 59‑61). It is not enough for the question to “touc[h] on an important issue” or to raise an issue of “wider public concern” (para. 61). Although the proper interpretation of s. 34(1)(e) is important for the affected persons and the proper administration of the IRPA , it does not affect the legal system or the administration of justice as a whole, have legal implications for many other statutes, or affect other institutions of government. Rather, the issues raised are particular to the interpretation of the conditions for inadmissibility under s. 34(1)(e). Moreover, the proper interpretation of s. 34(1)(e) is not a constitutional question or a question related to the jurisdictional boundaries between two or more administrative bodies, nor does it engage the correctness category recognized in Society of Composers. Thus, the rule of law does not require the Federal Court to review an administrative interpretation of s. 34(1)(e) for correctness. (3) The Certified Question Regime Under the IRPA Does Not Displace the Presumption", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-24", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 48", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Nor does the certified question regime under s. 74 (d) of the IRPA displace the presumption of reasonableness review and warrant a new category of correctness. As I will explain, the Federal Court’s certification of a question for appeal to the Federal Court of Appeal provides for a statutory appeal of the Federal Court’s decision to the Federal Court of Appeal, but it does not change the standard of review to be applied by either court.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-25", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 49", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "To begin with, it is obvious that the Federal Court’s decision to certify a serious question of general importance under s. 74(d) does not affect the standard of review to be applied by the Federal Court itself on the application for judicial review under s. 72(1) of the IRPA . The Federal Court does not certify the question until it is rendering its judgment on the application for judicial review. Section 74(d) provides that an appeal to the Federal Court of Appeal may be made “only if, in rendering judgment, the [Federal Court] certifies that a serious question of general importance is involved and states the question”. In effect, the certified question procedure plays a gatekeeping role by requiring the matter to meet a threshold of importance to merit an appeal to the Federal Court of Appeal. As this Court has stated, the certified question “may be the ‘trigger’ by which an appeal is permitted”, but the “subject of the appeal is still the judgment itself, not merely the certified question” (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at para. 44, citing Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 12). Thus, the certified question regime does not amount to “rare and exceptional circumstances” in which the Federal Court applying reasonableness review would undermine legislative intent or the rule of law in a manner analogous to the existing correctness categories (Society of Composers, at paras. 27 and 41).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-26", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 50", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The issue is then whether the certification of a serious question of general importance requires correctness review by the Federal Court of Appeal or this Court, either because of a legislative intent to apply correctness review or because it is required by the rule of law. In my view, the answer is no.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-27", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 51", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "As a matter of precedent, this Court has concluded in the immigration context that “[d]espite the presence of a certified question, the . . . standard of review is reasonableness” (Kanthasamy, at para. 44; see also Baker, at para. 62). Vavilov does not require that conclusion to be revisited. Certification of a question under s. 74 (d) of the IRPA does not signal that the legislature intended that appellate courts apply correctness review. As noted above, the Federal Court of Appeal’s task in an appeal from a decision of the Federal Court in an application for judicial review — including in an appeal based on a certified question — is to determine whether the Federal Court identified the appropriate standard of review, and then to decide whether it applied that standard properly (Agraira, at paras. 45‑47; Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, 468 D.L.R. (4th) 358, at para. 38, citing Horrocks, at para. 10). The Federal Court of Appeal must “step into the shoes” of the Federal Court and apply the same standard of review that it should have applied (Galindo Camayo, at para. 38, citing Kanthasamy, at para. 44). Here, the Federal Court had to judicially review the administrative decisions for reasonableness. The Federal Court of Appeal, when stepping into the shoes of the Federal Court on the certified question, had to do likewise. As a result, the certified question regime neither rebuts the presumption of reasonableness, nor alters the Court of Appeal’s task when it hears appeals from first instance judicial review decisions.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-28", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 52–53", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "What is more, recall that Vavilov itself involved an appeal to the Federal Court of Appeal on a certified question of general importance under s. 22.2 (d) of the Citizenship Act , R.S.C. 1985, c. C-29 , which provides — in terms materially identical to s. 74 (d) of the IRPA — that “an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question”. This Court in Vavilov reviewed the administrative decision at issue for reasonableness, noting that there was “no indication that the legislature intended a standard of review other than reasonableness to apply” (para. 170).\n\nFinally, recognizing a new correctness category here would conflict with Vavilov’s goal of simplifying and making more predictable the standard of review framework by providing only limited exceptions to reasonableness review (para. 47). Treating s. 74(d) as justifying correctness review would effectively reintroduce a “contextual” approach to the standard of review — with the certification of a serious question of general importance being a “contextual” factor suggesting correctness — and thus would revive the approach that Vavilov eliminated because it created “uncertainty” and was “unwieldy” (para. 7; see also P. Daly, “Unresolved Issues after Vavilov” (2022), 85 Sask. L. Rev. 89, at pp. 91-92 (Vavilov is “an exercise in simplification and clarification” that “excised” the “‘vexing contextual factors’ . . . from the standard of review selection exercise”.)). (4) Conclusion", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-29", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 54–56", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "I conclude that no exception to the presumption of reasonableness applies in these cases. As a result, the standard of review of the decisions of the IAD in Mr. Mason’s case and the ID in Mr. Dleiow’s case is reasonableness. B. Reasonableness Review\n\nI now turn to the second issue in these appeals: whether the administrative decisions under review were reasonable. This section recaps Vavilov’s guidance on conducting reasonableness review and comments briefly on the methodology of reasonableness review conducted by the courts below. The following section then applies reasonableness review to the two administrative decisions at issue. (1) Vavilov’s Guidance on Reasonableness Review of Administrative Decisions\n\nVavilov provided extensive guidance on conducting reasonableness review of administrative decisions (paras. 73-142). Without canvassing every detail of that guidance, the main elements of reasonableness review can be summarized as follows. (a) The Purpose of Reasonableness Review: Upholding the Rule of Law While According Deference", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-30", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 57–58", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Vavilov explained that the purpose of reasonableness review is “to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law” (para. 82). Reasonableness review starts from a posture of judicial restraint and “a respect for the distinct role of administrative decision makers” (para. 13), arising from the legislature’s institutional design choice to give administrative decision makers rather than courts the jurisdiction to decide certain issues (para. 24). Reasonableness review also serves to “maintain the rule of law” (para. 2) and “to safeguard the legality, rationality and fairness of the administrative process” (para. 13). Thus, the purpose of reasonableness review is to uphold “the rule of law, while according deference to the statutory delegate’s decision” (Canada Post, at para. 29). (b) A “Reasons First” Approach\n\nVavilov noted that, given the deference owed to an administrative decision, reasonableness review is “methodologically distinct” from correctness review (para. 12). The Court explained that “[w]hat distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place” (para. 15). Reasonableness review is thus concerned with both the administrator’s decision-making process and the outcome (paras. 83 and 87; see also Canada Post, at para. 29).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-31", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 59", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "When an administrative decision maker is required by the legislative scheme or the duty of procedural fairness to provide reasons for its decision, the reasons “are the primary mechanism by which administrative decision makers show that their decisions are reasonable” (Vavilov, at para. 81).[1] The purpose of reasons is to “demonstrate ‘justification, transparency and intelligibility’” (para. 81). Reasons are “the means by which the decision maker communicates the rationale for its decision” (para. 84). This Court emphasized that “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies” (para. 86 (emphasis in original)).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-32", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 60", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "A decision will be unreasonable when the reasons “fail to provide a transparent and intelligible justification” for the result (para. 136). A reviewing court must therefore take a “reasons first” approach that evaluates the administrative decision maker’s justification for its decision (para. 84). It must “begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion” (para. 84, citing D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286). As noted by Professor David Mullan, the “reasons first” approach “underscores a commitment to deference” and requires that reasons are “the principal lens through which the exercise of reasonableness review takes place” (p. 202). Thus, as he explains, “the starting or focal point for the conducting of truly deferential reasonableness review should be the reasons provided by the decision-maker” (p. 215; see also Daly (2022), at pp. 108-10).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-33", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 61", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Under Vavilov’s “reasons first” approach, the reviewing court should remember that “the written reasons given by an administrative body must not be assessed against a standard of perfection”, and need not “include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” (para. 91). The reviewing judge must read the administrator’s reasons “holistically and contextually” (para. 97), “in light of the history and context of the proceedings in which they were rendered”, including “the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body” (para. 94). Reasons must be read “in light of the record and with due sensitivity to the administrative regime in which they were given” (para. 103). Such factors may “explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency” (para. 94).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-34", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 62", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "A reviewing court should also avoid engaging in “disguised correctness review”, or correctness in the guise of reasonableness (para. 294, per Abella and Karakatsanis JJ., concurring in the result; see also Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, at para. 27, citing D. Mullan, “Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action — The Top Fifteen!” (2013), 42 Adv. Q. 1, at pp. 76‑81). Because “[t]he role of courts in these circumstances is to review”, they should, as a general rule, “refrain from deciding the issue themselves” (Vavilov, at para. 83 (emphasis in original)). A reviewing court should not create its “own yardstick and then use [it] to measure what the administrator did” (para. 83, and Canada Post, at para. 40, both citing Delios v. Canada (Attorney General), 2015 FCA 117, 100 Admin. L.R. (5th) 301, at para. 28). Nor should a reviewing court ask “what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem” (Vavilov, at para. 83; see also Canada Post, at para. 40). Rather, a “reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable” (Vavilov, at para. 83).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-35", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 63–65", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, Vavilov cautioned that the “reasons first” approach is “not a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability” (para. 13). Instead, it is “a robust form of review” (para. 13; see also paras. 12, 67 and 138), one that highlights “the need to develop and strengthen a culture of justification in administrative decision making” (para. 2). (c) Indicators of Unreasonableness\n\nVavilov identified two types of “fundamental flaws” indicating that an administrative decision is unreasonable: (1) a failure of rationality internal to the reasoning process; or (2) a failure of justification given the legal and factual constraints bearing on the decision (para. 101). A reviewing court need not categorize unreasonableness as falling into one category or another. They are simply a helpful way of describing how a decision may be unreasonable (para. 101). (i) Failures of Rationality in the Reasoning Process\n\nA failure of rationality in the reasoning process arises if the decision is not rational or logical (paras. 102‑4). A decision is unreasonable if, “read holistically”, it “fail[s] to reveal a rational chain of analysis” or “reveal[s] that the decision was based on an irrational chain of analysis” (para. 103). A reviewing court “must be able to trace the decision maker’s reasoning without encountering any fatal flaws” in the decision maker’s “overarching logic” (para. 102). It must “be satisfied that the decision maker’s reasoning ‘adds up’” (para. 104). (ii) Failures of Justification in Light of the Legal and Factual Constraints", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-36", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 66", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "A failure of justification in light of the legal and factual constraints bearing on the decision arises if the decision is not “justified in relation to the constellation of law and facts that are relevant to the decision” (para. 105). The legal and factual context “operate as constraints on the decision maker in the exercise of its delegated powers” (para. 105). The burden of justification varies with the circumstances, including the wording of the relevant statutory provisions, the applicable precedents, the evidence, the submissions of the parties, and the impact of the decision on the affected persons. The greater the interpretive constraints in a given case, the greater the burden of justification on the decision maker in deviating from those constraints (see M. Popescu, “L’arrêt Vavilov: à la recherche de l’équilibre perdu entre la primauté du droit et la suprématie législative” (2021), 62 C. de D. 567, at p. 603). Examples include the seven non-exhaustive constraints set out below. As was highlighted in Vavilov, “[t]hese elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached” (para. 106). 1. The Governing Statutory Scheme", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-37", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 67–68", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Whether an interpretation of the governing statutory scheme is justified will “depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority” (para. 110). Narrower and more precise language imposes a greater constraint on the decision maker, while “broad, open-ended or highly qualitative language” affords greater flexibility (para. 110). What matters is whether the decision maker has “properly justified its interpretation of the statute in light of the surrounding context” (para. 110). 2. The Principles of Statutory Interpretation\n\nAs already noted, a court evaluating the reasonableness of an administrative decision on a question of statutory interpretation “does not undertake a de novo analysis of the question or ‘ask itself what the correct decision would have been’” (para. 116). Instead, the court “must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached” (para. 116).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-38", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 69", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although an administrative decision maker need not “engage in a formalistic statutory interpretation exercise in every case” (para. 119), its decision must be consistent with the “modern principle” of statutory interpretation, which focusses on the text, context, and purpose of the statutory provision. The decision maker must demonstrate in its reasons that it was alive to those essential elements (para. 120). The omission of a minor aspect of the text, context, or purpose is unlikely to undermine the decision as a whole: omissions are not “stand-alone grounds for judicial intervention” (para. 122). In each case, “the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker” (para. 122). For example, an administrative interpretation may well be unreasonable if it fails to consider the potentially harsh consequences of its interpretation of a statutory provision for a large class of individuals, and whether, in light of those consequences, the legislature would have intended the provision to apply in that way (paras. 191-92). And even if a decision does not explicitly consider the meaning of a relevant provision, the court may be able to discern the interpretation adopted from the record and evaluate whether it is reasonable (para. 123).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-39", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 70", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "In interpreting a statute, an administrative decision maker may draw on its institutional expertise and experience and rely on considerations that a court would not have thought to employ, but which “enrich and elevate the interpretive exercise” (paras. 93 and 119; Canada Post, at para. 43). As Professor Audrey Macklin explains, courts should be “genuinely receptive to input beyond the usual techniques that courts use to discern text, context and purpose. These may include operational implications, alignment with broader statutory mandate, and so on” (“Seven Out of Nine Legal Experts Agree: Expertise No Longer Matters (in the Same Way) After Vavilov!” (2021), 100 S.C.L.R. (2d) 249, at p. 261). By being receptive to such factors, courts acknowledge that administrative decision makers have a role to play in elaborating the content of the schemes that they administer (Vavilov, at para. 108). Reasonableness review demands both that administrative decision makers demonstrate their expertise through their reasons and that judges pay “[r]espectful attention” to the ways in which their reasons reflect that expertise (para. 93; P. Daly, “Vavilov and the Culture of Justification in Contemporary Administrative Law” (2021), 100 S.C.L.R. (2d) 279, at pp. 285‑86).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-40", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 71–72", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, a court may conclude during a reasonableness review that “the interplay of text, context and purpose leaves room for a single reasonable interpretation of the statutory provision, or aspect of the statutory provision” (Vavilov, at para. 124, citing Dunsmuir, at paras. 72‑76, and Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52). In such a case, although a court should “generally pause before definitively pronouncing upon the interpretation” of a statutory provision, the court may conclude that remitting the question to the administrative decision maker may serve no useful purpose (Vavilov, at para. 124). It must be stressed that the possibility of a single reasonable interpretation is not a starting point of reasonableness review, as this would be contrary to a “reasons first” approach. Rather, it is a conclusion that a reviewing court may draw as a result of a proper reasonableness review, as part of the court’s consideration of the appropriate remedy. 3. Relevant Statutory Law, Common Law, and International Law\n\nStatutory law, common law, and international law may operate as legal constraints on an administrative decision maker (paras. 111 and 114). An administrative decision will be unreasonable if it fails to justify a departure from binding precedents (para. 112). International law can also operate as an important constraint, arising from the presumption that legislation is presumed to operate in conformity with Canada’s international obligations and the values and principles of customary and conventional international law, or by informing whether a decision was a reasonable exercise of administrative authority (para. 114). 4. The Evidence and Facts Before the Decision Maker", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-41", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 73–75", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Absent exceptional circumstances, a reviewing court will defer to an administrative decision maker’s factual findings (para. 125). A reviewing court may intervene, however, if the decision is unreasonable: if it is not “justified in light of the facts” or when “the decision maker has fundamentally misapprehended or failed to account for the evidence before it” (para. 126). 5. The Submissions of the Parties\n\nAn administrative decision maker’s reasons must “meaningfully account for the central issues and concerns raised by the parties” (para. 127). Reasons must be “responsive” to the parties’ submissions, because reasons are the “primary mechanism by which decision makers demonstrate that they have actually listened to the parties” (para. 127 (emphasis in original)). Although an administrative decision does not have to “respond to every argument or line of possible analysis” raised by the parties, “a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it” (para. 128). 6. The Past Practices and Decisions of the Administrative Body\n\nAdministrative decision makers should be concerned with the general consistency of their decisions, even if they are not bound by their prior decisions in the same way that courts are bound by stare decisis (para. 129). A decision will be unreasonable if the reasons fail to meet the “justificatory burden” for departing from “longstanding practices or established internal authority” (para. 131). 7. The Potential Impact of the Decision on the Affected Individual", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-42", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 76–78", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Vavilov also explained that “[w]here the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes” (para. 133). The principle of “responsive justification” means that if a decision has “particularly harsh consequences for the affected individual”, then “the decision maker must explain why its decision best reflects the legislature’s intention” (para. 133). An administrative decision may be unreasonable if it fails to grapple with particularly severe or harsh consequences for the affected individual (para. 134). An administrative decision maker’s reasons must “demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law” (para. 135).\n\nHaving set out Vavilov’s guidance on conducting reasonableness review, I now comment briefly on the approach to reasonableness review of the courts below. (2) Methodology of Reasonableness Review in the Courts Below\n\nThe Federal Court in Mr. Mason’s case did not have the benefit of Vavilov, and therefore did not apply Vavilov’s “reasons first” approach in judicially reviewing the administrative decisions. The Federal Court essentially conducted its own freestanding interpretation of s. 34(1)(e) based on the provision’s text, context, and purpose (paras. 38‑51), and then evaluated the administrative decisions against that interpretation (paras. 52‑62). As the Court of Appeal noted, this involved the Federal Court “fashioning its own yardstick to measure the administrator’s interpretation and interfering if the difference is too much” (para. 24). This approach was eschewed in this Court’s decision in Vavilov.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-43", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 79–80", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "But the Federal Court of Appeal also strayed from Vavilov’s methodology of reasonableness review. The Court of Appeal grafted onto Vavilov an extra step of “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” (para. 17). The parties before this Court contended that this preliminary step is inconsistent with Vavilov. The respondent Minister of Citizenship and Immigration — who otherwise agreed with the Court of Appeal’s conclusion — submitted that the Court of Appeal’s approach “should not be adopted”, and urged that “[t]he focus in the reasonableness analysis needs to remain, as this Court has instructed, on the reasons of the decision-maker, and not on a range of potential conclusions to be determined by a reviewing court in the abstract” (R.F., at para. 54). I agree. Vavilov is clear that a reviewing court must start its analysis with the reasons of the administrative decision maker; starting with its own perception of the merits may lead a court to slip into correctness review. C. Were the Administrative Decisions Reasonable?\n\nI now turn to consider whether the administrative decisions under review reasonably interpreted s. 34(1) (e) of the IRPA as not requiring a nexus with national security or the security of Canada.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-44", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 81–82", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "In reviewing the IAD’s reasons, I recall this Court’s instruction in Vavilov that a reviewing court should conduct reasonableness review mindful of the impact of the decision on the affected individual. The principle of “responsive justification” means that “[w]here the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes” (para. 133). Here, the interpretation of s. 34(1)(e) will affect whether two individuals — one of whom has not been convicted of a criminal offence — could be deported from Canada. As this Court has noted, individuals facing deportation may experience “any number of serious life-changing consequences”, including dislocation or permanent separation from their family (R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 72, per Wagner J. (as he then was), dissenting). The IAD’s reasons must reflect these stakes.\n\nI begin by summarizing in greater detail the interpretation of s. 34(1)(e) in the reasons of the IAD in Mr. Mason’s case, which were followed by the ID in Mr. Dleiow’s case, before addressing what the appellants say are failures of justification in the IAD’s reasons. (1) The IAD’s Reasons in Mr. Mason’s Case", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-45", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 83", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The IAD in Mr. Mason’s case ruled that a person can be inadmissible under s. 34(1) (e) of the IRPA even without violent conduct linked to national security or the security of Canada. It decided the appeal based on the parties’ written submissions, and concluded that Parliament intended s. 34(1)(e) to “relate to security in a broader sense”, including by ensuring that “individual Canadians are secure from acts of violence that would or might endanger their lives or safety” (para. 37). The IAD’s chain of reasoning was as follows: • Section 34(1)(e) cannot be read in isolation. The provision must be interpreted using the modern approach to statutory interpretation. The words used in s. 34(1)(e) must be assessed “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (para. 17, citing Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21). • The other paragraphs of s. 34(1) all have a nexus to national security, which may be a signal of Parliament’s intent, but is not determinative. Context comes not just from “the immediate co-text, but from the overall scheme and object of the IRPA ” (para. 21). The inadmissibility provisions in Part 1, Division 4 of the IRPA are “particularly relevant” (para. 21). • In at least one prior decision, X (Re), 2017 CanLII 146735 (I.R.B. (Imm. Div.)), in which a foreign national allegedly assaulted his former girlfriends in Canada but was not convicted of any offence in Canada, the ID interpreted the terms “security” and “security grounds” in s. 34(1)(e) as meaning “the security of Canada” or “national security”. But this interpretation is “not consistent with the presumption of consistent expression” (IAD reasons, at para.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-46", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 83", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "23). The terms “security” and “security grounds” in s. 34 must have different meanings from the terms “the security of Canada” or “national security” used elsewhere in the IRPA , including in the phrase “being a danger to the security of Canada” in s. 34(1)(d), which would otherwise be redundant. • The dictionary definition of “security”, which includes a “secure condition or feeling”, provides useful guidance (para. 25). This is a “broad definition” that “does not necessarily incorporate a national security element” (para. 25). • Obiter comments in prior cases tend to support the Minister of Public Safety and Emergency Preparedness’ position on the interpretation of s. 34(1)(e) (para. 27 (emphasis added), citing El Werfalli v. Canada (Public Safety and Emergency Preparedness), 2013 FC 612, [2014] 4 F.C.R. 673, at para. 75, which stated that “[t]he provision of reasonable grounds to believe an organization may engage in terrorism in the future serves to maintain national security and public safety being the object of the subsection 34(1)”; para. 28 (emphasis added), citing Fuentes v. Canada (Minister of Citizenship and Immigration), 2003 FCT 379, [2003] 4 F.C. 249, at para. 62, which interpreted a predecessor provision, s. 19 of the Immigration Act, R.S.C. 1985, c. I-2, as directed at the “key concepts” of “subversion, terrorism, crimes against humanity, war crimes and ordinary crimes”). • Section 36(1) (a) of the IRPA provides for inadmissibility based on the commission of a criminal offence in Canada, and requires a conviction. Section 34(1)(e) creates a different ground of inadmissibility based on conduct, “described in terms of the danger posed to the lives and safety of persons in Canada” (para. 33).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-47", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 83–84", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Such conduct is “a small subset of what would be considered serious criminality in section 36 of the IRPA ”, and “is distinct from criminal law” (para. 33). Sections 34 and 36 “overlap but are distinct” (para. 38). Section 36 addresses criminal offences, while s. 34 addresses danger posed to the lives and safety of persons in Canada. • Because inadmissibility is not a criminal sanction, it does not offend Canadian values to find a person inadmissible for acts that were “arguably criminal, but which did not lead to a criminal conviction” (para. 35). The conduct described in s. 34(1)(e) “is narrowly defined and anchored in terms of the danger posed to Canadians, not to criminal law” (para. 36). (2) Failures of Justification in the IAD’s Reasons\n\nPlainly, the IAD’s reasons applied several recognized techniques of statutory interpretation. The IAD adverted to the modern approach to statutory interpretation; attempted to read s. 34(1)(e) in the context of the rest of s. 34 and the broader context of the grounds of inadmissibility in Division 4 of the IRPA ; relied on a dictionary definition of “security”; considered the presumption of consistent expression to give the terms “security” and “security grounds” in s. 34(1)(e) a distinct meaning from the terms “the security of Canada” and “national security” used elsewhere in the IRPA ; and considered the only prior decision, a ruling of the ID, that had interpreted s. 34(1)(e) and was consistent with Mr. Mason’s position, as well as obiter statements from two Federal Court decisions that it viewed as supporting the Minister of Public Safety and Emergency Preparedness’ position. On balance, the IAD concluded that the Minister’s interpretive arguments outweighed Mr. Mason’s.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-48", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 85–87", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "As I will elaborate, although the IAD considered several of Mr. Mason’s arguments, it failed to address significant legal constraints that he had raised in his written submissions to the IAD: (1) two points of statutory context, and (2) the broad consequences of its decision. The IAD’s decision also failed to address (3) constraints imposed by international law that s. 3(3) (f) of the IRPA requires to be considered in interpreting and applying the legislation. These omissions establish that the IAD’s decision was unreasonable. (a) Failure to Address Two Significant Points of Statutory Context\n\nThe IAD failed to address two significant points of statutory context that Mr. Mason raised before the IAD in support of his argument that s. 34(1)(e) requires a nexus with national security or the security of Canada. Together, these omissions involve a failure of responsive justification.\n\nFirst, Mr. Mason submitted before the IAD that s. 34(1)(e) requires a nexus with national security or the security of Canada partly because the ministerial relief from inadmissibility under s. 34 (security grounds) is narrower than that available under s. 36 (serious criminality and criminality). He claimed that this narrower relief suggests that s. 34 is a “grave” form of inadmissibility concerned with “national security” (A.R., vol. II, at p. 30).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-49", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 88–89", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Mason submitted as follows. If a foreign national is inadmissible on security grounds under s. 34, the relief available is narrow: the Minister of Public Safety and Emergency Preparedness may declare that the matters referred to in s. 34 “do not constitute inadmissibility in respect of the foreign national if they satisfy the Minister that it is not contrary to the national interest” (IRPA , s. 42.1(1) ). But a foreign national inadmissible under s. 36 for being convicted of a criminal offence in Canada may seek broader relief: they may be granted ministerial relief from inadmissibility on humanitarian and compassionate grounds (s. 25(1)), and may not be found inadmissible if a record suspension for the conviction is in effect under the Criminal Records Act , R.S.C. 1985, c. C-47 (IRPA , s. 36(3) (b)).\n\nHere, for example, because Mr. Mason was not convicted of a criminal offence and his alleged conduct would make him inadmissible under the IAD’s interpretation of s. 34(1)(e), he could seek relief from inadmissibility only if he satisfied the Minister of Public Safety and Emergency Preparedness that it is in the “national interest”. But had Mr. Mason been convicted of a criminal offence for the same conduct, he could have applied for ministerial relief from inadmissibility on humanitarian and compassionate grounds, and he would not have been inadmissible at all had he been convicted of a criminal offence and later pardoned under the Criminal Records Act .", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-50", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 90–92", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Mason argued that because the relief available to persons inadmissible on security grounds under s. 34 is narrower than the relief available to persons inadmissible for criminality under s. 36, s. 34 was among the “grave forms of inadmissibility” and should “be interpreted in the context of national security” (A.R., vol. II, at p. 30).\n\nThe IAD’s reasons, read with sensitivity and in light of the record, did not address this important contextual argument. While perhaps not in itself determinative, this argument supported Mr. Mason’s position and imposed a significant legal constraint on the interpretation of s. 34(1)(e).\n\nSecond, Mr. Mason submitted before the IAD that s. 34(1)(e) requires a nexus with national security or the security of Canada partly because the Minister of Citizenship and Immigration must consider different criteria when conducting a “pre‑removal risk assessmen[t]” for a foreign national found inadmissible under s. 34 (security grounds) and under s. 36 (serious criminality and criminality) (A.R., vol. II, at pp. 30‑31). He submitted that in an assessment involving s. 36 the Minister must consider whether the person poses a danger to the public in Canada. In contrast, in an assessment involving s. 34 the Minister must consider whether the person poses a danger to the security of Canada. He claimed that this distinction supported his position that the security grounds under s. 34 require a nexus to national security or the security of Canada.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-51", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 93–95", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "A pre-removal risk assessment is a process under the IRPA by which a person subject to a removal order may apply to the Minister of Citizenship and Immigration for protection, resulting in refugee protection or a stay of the removal order (ss. 112 and 114(1)). In any application for a pre-removal risk assessment, the Minister must consider the danger that the person would be subjected to torture, the risk to their life, and the risk they would be subjected to cruel and unusual treatment or punishment (s. 97). For persons found inadmissible under s. 36(1) for serious criminality, the Minister must also consider “whether they are a danger to the public in Canada” (s. 113(d)(i)). But for persons found inadmissible on security grounds under s. 34, the Minister must, in addition to the s. 97 factors, consider “whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada” (s. 113(d)(ii)).\n\nMr. Mason argued before the IAD that these diverging considerations for pre-removal risk assessments suggest that Parliament contemplated that conduct captured by s. 36 poses a danger to the public in Canada, while conduct captured by s. 34 poses a danger to the security of Canada (A.R., vol. II, at pp. 30‑31). He claimed that this supported his position that the security grounds under s. 34 require a nexus to national security or the security of Canada.\n\nAgain, the IAD’s reasons did not address this important contextual argument, which, while not in itself determinative, supported Mr. Mason’s position and imposed a significant legal constraint on the interpretation of s. 34(1)(e).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-52", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 96–97", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Federal Court accepted that the IAD failed to address these two important contextual arguments that Mr. Mason had raised (para. 53). The Federal Court of Appeal disagreed, stating that the IAD had considered these two arguments “implicitly” (para. 59). In its view, “[t]o the extent that the [IAD] failed to mention some elements in its analysis of text, context and purpose, this was not a fundamental gap” (para. 59). The Court of Appeal said that “although one can quibble that certain elements of text, context and purpose were not mentioned in the reasons”, the court was “confident from the quality of the [IAD]’s overall reasoning that it considered them to be outweighed by other elements” (para. 59).\n\nI respectfully disagree with the Court of Appeal. I see no basis to conclude that the IAD considered these two important points of statutory context, even implicitly. Mr. Mason expressly raised both points as core planks supporting his position. The IAD’s failure to address them, while addressing other points, casts into doubt whether it was alert and sensitive to these issues (Vavilov, at paras. 127‑28). Reasons are the primary mechanism for the IAD to demonstrate that it actually listened to Mr. Mason (para. 127). In my view, the IAD’s reasons did not address — far less meaningfully grapple with — two key arguments that Mr. Mason had raised. The IAD’s reasons therefore failed to meet Vavilov’s standard of responsive justification (para. 127). (b) Failure to Address Potentially Broad Consequences", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-53", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 98–99", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The IAD also failed to address Mr. Mason’s submission that interpreting s. 34(1)(e) without a nexus to national security or the security of Canada would result in two broad consequences, which he claimed ran afoul of the principle of statutory interpretation that a legislature does not intend to produce absurd consequences (Rizzo, at para. 27; Vavilov, at para. 120). The IAD’s failure to address these two broad consequences involves another failure of responsive justification.\n\nFirst, Mr. Mason submitted that interpreting s. 34(1)(e) without a nexus to national security or the security of Canada would mean that “any act of violence against another individual would presumably result in one of the most grave forms of inadmissibility” (A.R., vol. II, at p. 31). The acts of violence caught by s. 34(1)(e) would, he submitted, extend from “domestic altercations” to “bar fights and schoolyard fights” (p. 31). I note that unlike a criminal conviction triggering inadmissibility under s. 36, which must be proven beyond a reasonable doubt, the facts triggering inadmissibility under s. 34 are subject to the much lower standard of “facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur” (IRPA , s. 33 ). Thus, s. 34(1)(e) would extend to any “acts of violence” — past, present, or future — that “would or might” “endanger the lives or safety” of “persons in Canada”. Mr. Mason submitted that it would be absurd for such acts to be captured by s. 34(1)(e).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-54", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 100", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Unlike the Federal Court of Appeal, I do not read the IAD’s reasons as having addressed this argument. The Federal Court of Appeal interpreted the IAD’s reasons as interpreting “safety” as “something approaching the level of a threat to life, not just minor harm” (para. 57). The court based this conclusion on the IAD’s observation that s. 34(1)(e) is “narrowly defined and anchored in terms of the danger posed to Canadians, not to criminal law”. But the IAD made this statement in explaining that immigration consequences under the IRPA are distinct from criminal sanctions and are subject to different evidentiary thresholds; it did not say that s. 34(1)(e) applied only to a small class of especially serious violent conduct approaching a threat to life. As the IAD explained: . . . immigration consequences under the IRPA are not criminal sanctions. Criminal law and the IRPA have different objects. The IRPA operates under a different scheme including, for example, a lower evidentiary threshold. A person can be found inadmissible for conduct even if they have not been convicted criminally for that conduct. The conduct described in paragraph 34(1)(e) is narrowly defined and anchored in terms of the danger posed to Canadians, not to criminal law. [para. 36]", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-55", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 101–102", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "With respect, the Court of Appeal effectively buttressed the IAD’s reasons to provide a justification that the IAD did not itself provide, contrary to Vavilov’s direction that “it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome” (para. 96). This Court warned that “[t]o allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion” (para. 96).\n\nAs for the second broad consequence, Mr. Mason submitted to the IAD that if s. 34(1)(e) is interpreted without a nexus to national security or the security of Canada, it would do an “end-run around the limitations under s. 36(3)(e) with respect to youth offences” (A.R., vol. II, at pp. 31‑32). Section 36(3) (e) of the IRPA provides that young persons who are permanent residents or foreign nationals found guilty under the Young Offenders Act , R.S.C. 1985, c. Y-1 , or who received a youth sentence under the Youth Criminal Justice Act , S.C. 2002, c. 1 , cannot be found inadmissible under s. 36(1) (serious criminality) or s. 36(2) (criminality). In effect, under s. 36(3)(e), Parliament exempted young persons from inadmissibility for most criminal offences. But on the IAD’s interpretation of s. 34(1)(e), young persons can be found inadmissible for any acts of violence that would or might engage the lives or safety of persons in Canada, even without a nexus to national security or the security of Canada, and even without a criminal conviction.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-56", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 103–105", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Neither the IAD nor the Federal Court of Appeal addressed this incompatibility of the IAD’s interpretation of s. 34(1)(e) with the scheme for the inadmissibility of young persons under the IRPA . This omission was also not a minor aspect of s. 34(1)(e)’s interpretive context, and should have been addressed. (c) Failure to Address Constraints Imposed by International Law\n\nFinally, the IAD failed to address the legal constraints imposed by international law on its interpretation of s. 34(1)(e). As I will explain, the IAD’s interpretation allows foreign nationals to be returned to countries where they may face persecution, contrary to Canada’s non-refoulement obligation in Article 33 of the Refugee Convention. By contrast, interpreting s. 34(1)(e) as requiring a nexus with national security or the security of Canada means that a removal order would not breach Article 33. Although this argument was not presented to the IAD, the IAD was required by its home statute to interpret and apply the IRPA in a manner that complies with Canada’s international human rights obligations, including Canada’s non-refoulement obligation under Article 33 of the Refugee Convention.\n\nVavilov highlighted that international law may be an “important constraint on an administrative decision maker”, including through the presumption of statutory interpretation that “legislation is presumed to operate in conformity with Canada’s international obligations” (para. 114). Canada has ratified both the 1951 Refugee Convention and the 1967 Refugee Protocol (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 17). These international human rights instruments to which Canada is a party trigger the interpretive presumption of conformity with international law.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-57", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 106", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The presumption of conformity with international law assumes added force when interpreting the IRPA , because Parliament has made its “presumed intent to conform to Canada’s international obligations explicit” through two provisions of the IRPA (B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at para. 49). First, s. 3(2)(b) of the IRPA expressly identifies one of the IRPA ’s objectives as being “to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement”. Indeed, this Court has described the IRPA as the “main legislative vehicle for implementing Canada’s international refugee obligations” (Németh, at para. 21). Second, s. 3(3) (f) of the IRPA instructs courts and administrative decision makers to construe and apply the IRPA in a manner that “complies with international human rights instruments to which Canada is signatory” (B010, at para. 49). This Court has stated that “[t]here can be no doubt that the Refugee Convention is such an instrument, building as it does on the right of persons to seek and to enjoy asylum from persecution in other countries as set out in art. 14 of the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948)” (para. 49). As a result, the Refugee Convention is “determinative of how the IRPA must be interpreted and applied, in the absence of a contrary legislative intention” (de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655, at para. 87; B010, at para. 49).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-58", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 107", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The centrepiece of the Refugee Convention is contained in the provisions relating to “expulsion and return” (Németh, at para. 18). Article 33, which has been expressly incorporated into the IRPA (s. 115 ), bars the expulsion or return of a refugee, by any means, to a country where they are at risk of persecution, unless they are found to pose a danger to the security of the host country or are convicted of a serious crime. Article 33 of the Refugee Convention provides: Article 33 Prohibition of Expulsion or Return (“Refoulement”) 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-59", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 108", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Article 33(1) enshrines the principle of non-refoulement, which has been described as “the cornerstone of the international refugee protection regime”, and which, generally, “prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations” (Németh, at paras. 18‑19). Article 33(2), which operates as a limited exception to the principle of non-refoulement in Article 33(1), allows a person to be removed in exceptional circumstances: when there are reasonable grounds for regarding the person as a danger to the security of the country in which they are, or when the person is convicted of a serious crime and is a danger to the community of that country (see Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at para. 25). Article 42 of the Refugee Convention further stipulates that ratifying states may not make reservations to the non-refoulement protections of Article 33 (Németh, at para. 18). The principle of non-refoulement is generally recognized as a norm of customary international law (see Prosecutor v. Germain Katanga, ICC-01/04-01/07, Decision on the application for the interim release of detained Witnesses, 1 October 2013 (Trial Chamber II), at para. 30; Zaoui v. Attorney-General (No. 2), [2005] 1 N.Z.L.R. 690 (C.A.), at paras. 34-35; S. E. Lauterpacht and D. Bethlehem, “The scope and content of the principle of non-refoulement: Opinion”, in E. Feller, V. Türk and F. Nicholson, eds., Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003), 87, at paras. 193-253; H. Lambert, “Customary Refugee Law”, in C. Costello, M. Foster and J. McAdam, eds., The Oxford Handbook of International Refugee Law (2021), 240, at pp.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-60", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 108–109", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "242-49; and United Nations High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2007), at paras. 14-16).\n\nThe IAD’s interpretation allows a foreign national found inadmissible under s. 34(1)(e) to be subject to refoulement contrary to Article 33(1) of the Refugee Convention. On the IAD’s interpretation, a foreign national can be deported to persecution once they are found inadmissible under s. 34(1)(e), without a finding that the person poses a danger to the security of Canada or even if they have not been convicted of a serious offence. Such a person would be entitled to the benefit of Article 33(1) of the Refugee Convention, as the exceptions under Article 33(2) would not apply: on the IAD’s approach to inadmissibility under s. 34(1)(e), there need not be “reasonable grounds” to regard the foreign national as a “danger to the security” of Canada, or for them to have been “convicted by a final judgment of a particularly serious crime”.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-61", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 110", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "A person facing such a removal order would not be protected from refoulement under Article 33(1) through the IRPA ’s pre-removal risk assessment process. Although such a person may apply to the Minister of Citizenship and Immigration for a pre-removal risk assessment (IRPA , s. 112 ), the grounds that the Minister must consider in assessing the risk to the person if the removal order is not stayed do not include those under Article 33(1) of the Refugee Convention. The Minister does not consider whether the person is a “Convention refugee”, that is, whether the person has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion (s. 96). Instead, the Minister need consider only (1) whether the application for a stay of the removal order should be refused because of the nature and severity of acts committed by the person or because of the danger that the person constitutes to the security of Canada, and (2) whether the person’s removal would subject them to a danger of torture, to a risk to their life, or to a risk of cruel and unusual treatment or punishment (ss. 97(1) and 113(d)(ii)). Thus, as fairly conceded by the respondent Minister, the Minister does not consider the forms of persecution described in Article 33(1) (R.F., at para. 106). And while there are several “safety valves” under the IRPA that provide discretionary exemptions from the application of the general ineligibility rules under the IRPA (see Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, at paras. 43-48), none of these discretionary exemptions detract from the concern that the IAD’s interpretation of s.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-62", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 110–111", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "34(1)(e) would, as a general rule, allow for a removal order without protection from refoulement, contrary to Article 33(1) of the Refugee Convention.\n\nAs a result, interpreting s. 34(1) (e) of the IRPA as not requiring a nexus with national security or the security of Canada — as did the IAD — could subject persons to refoulement contrary to Article 33(1) of the Refugee Convention. By contrast, interpreting s. 34(1)(e) as requiring a nexus with national security or the security of Canada would trigger the exception in Article 33(2) to the ability to claim the protection of Article 33(1) of the Refugee Convention, and thus a removal order in such circumstances would not breach Canada’s obligation of non-refoulement.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-63", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 112", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The respondent Minister contends that s. 115(1) and (2) of the IRPA operate as a safeguard against refoulement and “fulfil[l] Canada’s international obligations by ensuring that it is only in exceptional cases that a Convention refugee or a protected person will lose the benefit of non-refoulement and be removed from Canada” (R.F., at para. 125). Section 115(1) prohibits removal of certain persons to persecution, and s. 115(2) provides for limited exceptions to that prohibition: Protection 115 (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. Exceptions (2) Subsection (1) does not apply in the case of a person (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or (b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada. According to the Minister, if a person inadmissible under s. 34(1)(e) is subject to an enforceable removal order, s. 115(1) and (2) will prevent their refoulement except in limited circumstances, and so s. 34(1)(e) need not be interpreted as requiring a link to national security or the security of Canada.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-64", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 113", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "I disagree with the Minister’s submission for two reasons. First, while the Minister is correct that the s. 115(2) exceptions apply in limited circumstances, they nonetheless allow refoulement of persons inadmissible under s. 34(1)(e) in circumstances outside the scope of the Article 33(2) exceptions. As discussed above, Article 33(2) provides for exceptions to the non-refoulement principle for persons reasonably regarded as a danger to the security of the host country, or who are convicted of a particularly serious crime and are a danger to the community. But s. 115(2) countenances refoulement outside those circumstances: it only requires that the Minister of Citizenship and Immigration be of the opinion that the person should not be allowed to remain in Canada on the basis of (1) the nature and severity of acts committed, or (2) danger to the security of Canada. It thus permits the Minister to allow refoulement based on “the nature and severity” of acts not linked to “the security of the country”.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-65", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 114–116", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, s. 115(1) affords protection to a narrower set of persons than are protected from refoulement under the Refugee Convention. Section 115(1) only affords protection to a person recognized as having refugee status: “[a] protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned”. By contrast, Article 33 affords protection to “a refugee”, and thus does not require a prior recognition of refugee status (Refugee Convention, Article 1; Refugee Protocol, Article 1; G. v. G., [2021] UKSC 9, [2022] A.C. 544, at para. 81 (“The obligation not to refoule an individual arises by virtue of the fact that their circumstances meet the definition of ‘refugee’, not by reason of the recognition by a contracting state that the definition is met.”)). As a result, if s. 34(1)(e) applies to conduct not linked to national security or the security of Canada, s. 115(1) allows the Minister of Citizenship and Immigration to subject refugee claimants to refoulement contrary to Article 33(1) of the Refugee Convention.\n\nThat neither Mr. Mason nor Mr. Dleiow is a refugee claimant does not detract from this conclusion. The Refugee Convention imposes an important legal constraint on the interpretation of s. 34(1)(e) generally, irrespective of whether the specific foreign national subject to deportation is a refugee claimant.\n\nThe Federal Court of Appeal declined to consider this argument because it had not been made to the IAD, and because it said that “certain background documents and other instruments needed to understand any international obligations are not in evidence before us” (paras. 73‑74). The court did not say what documents and instruments might be missing.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-66", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 117–119", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "In any event, the role of the Refugee Convention in constraining the interpretation of the IRPA is a question of law, one that Parliament by s. 3(3)(f) has expressly directed a court or administrative decision maker to consider. The IAD’s failure to consider this issue did not involve the omission of a “minor aspect of the interpretive context” (Vavilov, at para. 122). Rather, it involved the omission of the principle of non-refoulement — “the cornerstone of the international refugee protection regime”, and a critical legal constraint on interpretation of the IRPA , one that Parliament has decreed must be considered in construing and applying the IRPA . This crucial omission made the IAD’s decision unreasonable. D. Conclusion and Remedy\n\nThe IAD’s reasons in Mr. Mason’s case failed to address critical points of statutory context and the broad consequences of its interpretation of s. 34(1) (e) of the IRPA , all of which Mr. Mason had highlighted in his written submissions to the IAD. These omissions were significant, not minor; they involved a failure of “responsive justification” by the IAD. The IAD also failed to interpret and apply s. 34(1)(e) in compliance with Canada’s obligation of non-refoulement under the Refugee Convention, a matter that Parliament has decreed it must consider. Cumulatively, these omissions rendered the IAD’s decision unreasonable.\n\nThe ID’s decision in Mr. Dleoiw’s case, which simply followed the IAD’s interpretation of s. 34(1) (e) of the IRPA in Mr. Mason’s case, was unreasonable for the same reasons.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-67", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 120", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Vavilov cautioned that although a court conducting a reasonableness review is not tasked with determining the “correct” interpretation of a disputed statutory provision, it may become clear in the course of conducting a judicial review that the relevant constraints bearing on the decision “so overwhelmingly” favour one interpretation that there is room for only one reasonable interpretation of the provision at issue (para. 124, citing approvingly Nova Tube, at para. 61 (CanLII), per Laskin J.A.). This Court noted that, based on the applicable constraints, a particular outcome may be “inevitable” (Vavilov, at para. 142). In such a case, while “a court should generally pause before definitively pronouncing upon the interpretation of a provision entrusted to an administrative decision maker”, it would serve no useful purpose to remit the matter to the original decision maker (para. 124). The Court reached this conclusion not as the starting point of its reasonableness review, but rather as a result of a proper reasonableness review when considering the appropriate remedy.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-68", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 121–122", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "That is also the case here. The relevant legal constraints cumulatively 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. This interpretation is supported by the placement of s. 34(1)(e) amid other “security grounds” in s. 34, all of which have a link to national security or the security of Canada. And although the IAD noted that some interpretive constraints point in the other direction, the two critical points of statutory context that the IAD failed to consider, and especially, the legal constraints imposed by international law, overwhelmingly support the opposite conclusion: s. 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.\n\nAs a result, the decision of the IAD in Mr. Mason’s case and of the ID in Mr. Dleiow’s case were unreasonable and should be quashed. Because the Minister has not alleged that Mr. Mason or Mr. Dleiow engaged in acts of violence with a link to national security or the security of Canada, s. 34(1)(e) of the IRPA does not provide a legal basis for the inadmissibility of either person. And because the Minister has not alleged any other basis for their inadmissibility, there is no need to remit either decision to the ID or IAD for redetermination. VI. Disposition", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-69", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 123–125", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "I would allow the appeals, set aside the judgments of the Federal Court of Appeal and allow the applications for judicial review. In Mr. Mason’s appeal, I would quash the IAD decision thus restoring the ID decision. In Mr. Dleiow’s appeal, I would quash the ID decision and deportation order. Since neither appellant requested costs, I would make no order as to costs. The following are the reasons delivered by Côté J. — I. Introduction\n\nI agree with my colleague’s disposition of these appeals. Inadmissibility under s. 34(1) (e) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), requires a nexus between the relevant act of violence and with national security or the security of Canada (see paras. 11 and 121). However, I would review the Immigration Appeal Division’s (“IAD”) interpretation of s. 34(1)(e) on a standard of correctness, as submitted by the appellant Mr. Earl Mason and the interveners the Canadian Association of Refugee Lawyers and the Canadian Council for Refugees.\n\nIn Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, this Court held that reviewing courts should derogate from the presumption of reasonableness review where required by (1) a clear indication of legislative intent or (2) the rule of law (para. 10). In my view, the rule of law requires — and Parliament intended for appellate courts to provide — definitive, correct answers to legal questions certified under s. 74 (d) of the IRPA . By definition, these are questions that transcend the interests of the parties and raise issues of broad significance within Canada’s immigration and refugee protection scheme (see Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674, at para. 46).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-70", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 126–127", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, this Court noted that the certified question regime would be “incoherent” if the standard of review were anything other than correctness (para. 43). This is exemplified by the companion appeals before us. The IAD’s interpretation of s. 34(1)(e) in Mr. Mason’s case, subsequently applied to Mr. Dleiow, would significantly expand the grounds on which foreign nationals or permanent residents may be deported from Canada. It would allow foreign nationals to be returned to countries where they may face persecution, in a manner contrary to Canada’s obligations under the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (see Jamal J.’s reasons, at paras. 104‑17). Parliament did not intend for appellate courts, as the Federal Court of Appeal did in this case, to defer to such interpretations where they may be “reasonable”, but are nonetheless wrong in law (see Pushpanathan, at para. 43).\n\nTo be consistent with the principles and framework set out in Vavilov, I would recognize a new category of correctness review: when appellate courts decide a “serious question of general importance” certified under s. 74 (d) of the IRPA . II. Analysis A. The Standard of Review for Certified Questions Under the IRPA Is Undecided Post‑Vavilov (1) Pre‑Vavilov Jurisprudence", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-71", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 128", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Prior to Vavilov, this Court was inconsistent in its approach to certified questions. In Pushpanathan, the majority of this Court held that the certified question regime under s. 83(1) of the former Immigration Act, R.S.C. 1985, c. I‑2 — the predecessor to s. 74 (d) of the IRPA — would be “incoherent if the standard of review were anything other than correctness” (para. 43). Writing for the majority, Bastarache J. noted that the only way in which the certification procedure could be given its explicitly articulated scope was if courts were permitted to substitute their own answers for those of the Immigration and Refugee Board in respect of questions of general importance.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-72", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 129", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Under the pre‑Vavilov contextual approach, this Court departed from the approach taken in Pushpanathan in some subsequent cases, though not in most. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the majority of this Court applied the intermediate standard of review of reasonableness simpliciter, distinguishing Pushpanathan based on the “highly discretionary and fact‑based nature” of the Minister’s decision to refuse to exempt the appellant in that case from deportation on humanitarian and compassionate grounds (Baker, at paras. 61‑62). Importantly, however, the Court answered the certified question before it definitively: Simpson J. certified the following as a “serious question of general importance” under s. 83(1) of the Immigration Act: “Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?” . . . The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision‑maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. [Emphasis added; emphasis in original deleted; paras. 9 and 75.]", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-73", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 130–131", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Court also applied a standard of review of reasonableness in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, on the basis that the Minister’s decision under the former s. 34(2) of the IRPA was discretionary (para. 50). In Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, the majority of this Court held that the fact that the reviewing judge “considered the question to be of general importance” was “relevant, but not determinative” of the standard of review (para. 44). “Despite the presence of a certified question, the appropriate standard of review” in that case was reasonableness (ibid., citing Baker, at para. 62).\n\nHowever, as the Canadian Association of Refugee Lawyers notes in its factum, Agraira and Kanthasamy are outliers. The Court applied a standard of correctness in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 26, and Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, at para. 71. In other cases, the Court gave definitive answers to certified questions of interpretation either without addressing the standard of review (see Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, at paras. 6‑9; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at paras. 6 and 60) or after finding that it was unnecessary to resolve the issue (B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at paras. 26 and 76; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at paras. 23, 53 and 56).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-74", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 132–133", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Relying on pre‑Vavilov authorities, my colleague says that this Court has “concluded in the immigration context” that the standard of review for certified questions is reasonableness (para. 51, citing Kanthasamy and Baker). With respect, I disagree.\n\nFirst, this Court did not endorse or even cite Kanthasamy in Vavilov. It relied on Baker in Vavilov, but for reasons unrelated to the determination of the standard of review.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-75", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 134", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, prior to Vavilov, this Court consistently provided definitive answers to certified questions of statutory interpretation (see, e.g., Pushpanathan, at paras. 75‑76; Baker, at para. 75; Chieu, at para. 90; Ezokola, at paras. 6‑9; Febles, at para. 60; Hilewitz, at para. 71; B010, at para. 76; Tran, at para. 56; see also Vavilov v. Canada (Citizenship and Immigration), 2017 FCA 132, [2018] 3 F.C.R. 75, at para. 37; Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, [2015] 1 F.C.R. 335, at para. 33). In Kanthasamy, the majority of this Court arguably did the same. Indeed, prior to considering the standard of review, Abella J., who wrote the majority reasons, engaged in a lengthy interpretive exercise with respect to s. 25(1) of the IRPA (see paras. 10‑41). In dissent, Moldaver J. (Wagner J. (as he then was) concurring) lamented that the majority had adopted a “do as we say, not what we do” approach to reasonableness review: In particular, I am concerned that my colleague has not given the Officer’s reasons the deference which, time and again, this Court has said they deserve. In her reasons, she parses the Officer’s decision for legal errors, resolves ambiguities against the Officer, and reweighs the evidence. Lest we be accused of adopting a “do as we say, not what we do” approach to reasonableness review, this approach fails to heed the admonition in Newfoundland and Labrador Nurses — that reviewing courts must be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fatal (para. 17).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-76", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 134–136", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "As is the case with every other court, this Court has no licence to find an officer’s decision unreasonable simply because it considers the result unpalatable and would itself have come to a different result. [Emphasis added; para. 112.]\n\nFollowing Kanthasamy, a unanimous Court held in Tran that an administrative interpretation of the “serious criminality” provisions set out in s. 36(1) (a) of the IRPA could not stand under either standard of review (para. 23). The Court did not endorse or cite Kanthasamy and, again, provided definitive answers to the two questions of general importance certified by the Federal Court: 1. Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code a “term of imprisonment” under s. 36(1) (a) of the IRPA ? ― No. 2. Does the phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1) (a) of the IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined? ― It refers to the maximum term of imprisonment available at the time of the commission of the offence. [para. 56]\n\nIn sum, the weight of authority confirms that prior to Vavilov, this Court repeatedly answered certified questions definitively and without deference to administrative decision makers. I therefore disagree that, “[a]s a matter of precedent”, reasonableness review applies (Jamal J.’s reasons, at para. 51).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-77", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 137–139", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "In any event, Vavilov overtook prior jurisprudence (para. 143; see Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, at para. 25). The jurisprudence discussed above must be analyzed in light of the principles and framework set out in Vavilov. (2) Vavilov\n\nIn Vavilov, this Court recognized five categories of correctness review, based on either legislative intent (legislated standards of review and statutory appeal mechanisms) or the rule of law (constitutional questions, general questions of law of central importance to the legal system as a whole, and questions regarding jurisdictional boundaries between administrative bodies) (paras. 17 and 69). However, it was expressly stated in Vavilov that the categories of correctness review are not closed (para. 70). And indeed, in Society of Composers, this Court recognized a new category: “. . . when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute. Applying correctness to these issues accords with legislative intent and promotes the rule of law” (para. 28).\n\nThe issue in Vavilov reached the Federal Court of Appeal by way of a certified question under s. 22.2 (d) of the Citizenship Act , R.S.C. 1985, c. C‑29 . The Federal Court of Appeal provided a definitive answer to that question: The proper stated question and my proposed answer to it are as follows: Question: Are the words “other representative or employee [in Canada] of a foreign government” found in paragraph 3(2) (a) of the Citizenship Act limited to foreign nationals [falling within these words] who [also] benefit from diplomatic privileges and immunities? Answer: Yes. [para. 90]", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-78", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 140–142", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court upheld the Federal Court of Appeal’s decision quashing the Registrar of Citizenship’s decision to cancel Mr. Vavilov’s citizenship certificate (para. 194). The majority of the Court concluded that Mr. Vavilov’s status was governed by s. 3(1) (a) of the Citizenship Act and that he was a Canadian citizen (para. 196).\n\nWhile I acknowledge that our Court applied a standard of review of reasonableness to the Registrar’s decision, I would not read Vavilov as decisive of the standard of review for certified questions under the IRPA moving forward. Let me explain.\n\nFirst, this Court did not discuss the issue of certified questions in Vavilov. As noted in Society of Composers, when this Court “wanted to reject the possibility of a certain correctness category, it did so expressly” (para. 42, citing Vavilov, at paras. 71‑72). In my view, the standard of review for certified questions — certainly in the unique context of the IRPA , as explained below — remains an open question post‑Vavilov.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-79", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 143–144", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "I would note that the Federal Court of Appeal does not view Vavilov as dispositive on this point. To the contrary, in Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, 468 D.L.R. (4th) 358, the court noted that correctness review of certified questions would “seem to gain greater credence now that the Supreme Court has held that statutory standards can have a bearing on the standard of review” (para. 41 (emphasis added)). Writing for the court, Mactavish J.A. observed that in Vavilov itself, the Federal Court of Appeal gave a “precise answer, akin to a correctness review answer”, to the certified question before it, an approach that this Court effectively ratified in dismissing the appeal (para. 43). The Federal Court of Appeal in Galindo Camayo appears to have applied a standard of reasonableness based on Kanthasamy, not Vavilov (see para. 42).\n\nSecond, the certified question in Vavilov arose under different legislation, the Citizenship Act . In the separate and unique context of the IRPA , multiple different ministers, government departments, and agencies, as well as Canada’s largest administrative tribunal (the Immigration and Refugee Board) are charged with independently administering the statutory scheme. In many cases, these separate decision makers are required to interpret the same statutory provisions. While it is beyond the scope of these appeals to exhaustively canvass the scheme of the Citizenship Act , the statutory certification process has been widely used under the IRPA to settle divergent interpretations or disagreements on legal issues of general importance (see Huruglica v. Canada (Citizenship and Immigration), 2016 FCA 93, [2016] 4 F.C.R. 157, at para. 28).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-80", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 145–146", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, to say that Vavilov is determinative and that the standard of review for certified questions is reasonableness would contradict the Vavilov framework itself. As I explain below, reasonableness review of certified questions under the IRPA is inconsistent with both Parliament’s intent and the rule of law. B. Certified Questions Under the IRPA Should Be Recognized as a New Category of Correctness Review (1) Legislative Intent\n\nIn s. 74(d) of the IRPA , Parliament has provided for an “exceptional” appeal (see Pushpanathan, at para. 43) to the Federal Court of Appeal for legal questions certified as “serious question[s] of general importance”. This indicates legislative intent for judicial involvement and a desire to subject these particular questions, as distinct from all others arising under the IRPA more broadly, to appellate standards of review (see Society of Composers, at para. 30; Vavilov, at para. 36). Parliament’s institutional design choice should be respected by the courts.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-81", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 147", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "I do not dispute that s. 74(d) provides for statutory appeals following judicial review decisions. If Parliament had provided for statutory appeals from administrative decisions directly, certified questions would fit within the existing Vavilov category. Nonetheless, as this Court noted in Society of Composers, the presumption of reasonableness review no longer applies where the legislature expressly involves the court in the administrative scheme: Reasonableness is the standard of review that, in most instances, gives best effect to legislative intent. When the legislature has granted exclusive jurisdiction to an administrative decision maker, courts presume that the legislature wanted that decision maker to operate without undue judicial interference: Vavilov, at para. 24. When the legislature expressly involves the court in the administrative scheme, this presumption no longer applies. That is why legislated standards of review and statutory appeal mechanisms give rise to a correctness standard of review. Such statutory features indicate legislative intent for judicial involvement and a desire to subject those decisions to appellate standards of review: Vavilov, at para. 36. [Emphasis added; paras. 29‑30.]", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-82", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 148", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "As my colleague acknowledges, the certified question regime under the IRPA is a “statutory mechanism” through which an appeal is provided for “in certain circumstances”, i.e. based on the nature and importance of the legal question at issue (para. 9). Through s. 74(d), Parliament does not “exclude the courts but rather makes them part of the enforcement machinery” in certain circumstances (Vavilov, at para. 36, citing Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, at p. 195). In my view, this strongly rebuts the presumption of reasonableness review for this particular type of legal question, in a manner analogous to the existing categories of correctness review.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-83", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 149–150", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Prior to Vavilov, the Federal Court of Appeal also adopted the practice of providing the “definitive answer to a certified question on a point of statutory interpretation” (see Kanthasamy, at para. 35). This is consistent with Parliament’s express intent for appellate courts to decide certified questions. In Pushpanathan, this Court discussed Parliament’s intent as follows: First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the legislative intention as to the standard of review is the use of the words “a serious question of general importance” . . . . The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice. Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the “general importance” of the question, the court accept decisions of the Board which are wrong in law, even clearly wrong in law, but not patently unreasonable? [Emphasis in original; para. 43.]\n\nThe Court then noted that, for the certified question regime to be given its explicitly legislated scope, appellate courts must be able to answer them correctly: The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal — and inferentially, the Federal Court, Trial Division — is permitted to substitute its own opinion for that of the Board in respect of questions of general importance. [Emphasis added; para. 43.]", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-84", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 151–152", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "I could not agree more. For serious questions of general importance arising under the IRPA , Parliament did not intend courts to be forced to defer to administrative decisions that may be “reasonable”, but are wrong in law. As with s. 83(1) of the former Immigration Act, the only way s. 74 (d) of the IRPA can be given its explicitly legislated scope is if appellate courts are permitted to substitute their own opinion in respect of serious questions of general importance.\n\nThe Federal Court of Appeal has struggled with this exact issue since Vavilov. In Galindo Camayo, Mactavish J.A. lamented the “misfit between answering [a] certified question properly and conducting reasonableness review” (para. 41): However, the fact that we have certified questions before us gives rise to an awkward situation. Certified questions generally raise questions of law, including, as in this case, questions of statutory interpretation. However, the questions, as phrased by the Federal Court, require a yes or no answer. This invites correctness review by this Court. That said, as described above, this Court is required to engage in reasonableness review on questions of statutory interpretation. This creates the possibility that, in some cases, this Court may find the [Refugee Protection Division’s] interpretation of a statutory provision to be reasonable, yet this Court may say something entirely different in providing its own view of the matter in answering the certified question — something that the Supreme Court expressly tells us not to do . . . . [Emphasis added; para. 40.]", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-85", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 153–154", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The court’s solution to this problem in Galindo Camayo was to reformulate the certified question to ask whether a particular statutory interpretation was reasonable: In this case, the second and third questions, as stated, call for a correctness response. I would therefore amend them to ask whether the particular statutory interpretation or approach suggested by the question is or is not reasonable. [Emphasis added; para. 44.]\n\nThis is also what the Federal Court did in Mr. Mason’s case, in an attempt to incorporate reasonableness as the applicable standard of review: The parties, however, each proposed their version of the question referring to the “correctness” of the IAD’s interpretation. I thus rephrase the question as follows, incorporating reasonableness as the applicable standard of review: Is it reasonable to interpret section 34(1) (e) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in a manner that does not require proof of conduct that has a nexus with “national security” or “the security of Canada?” (2019 FC 1251, [2020] 2 F.C.R. 3, at para. 70)", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-86", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 155–157", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my view, this clearly distorts Parliament’s intent in s. 74(d). I do not accept that Parliament intended courts to reformulate certified questions, rather than answering them correctly. Where appellate courts conclude that there is only one reasonable interpretation of a disputed statutory provision, I struggle to see any meaningful difference between that interpretation and the correct interpretation of the statutory provision in question. Where there may be multiple “reasonable” interpretations, appellate courts are faced with the prospect of upholding decisions that incorrectly determine questions of law — for example, the impact of Canada’s international law obligations on the interpretation of certain sections of the IRPA (see Jamal J.’s reasons, at para. 117).\n\nIn this case, the IAD’s failure to consider this issue at all may have been unreasonable (see Jamal J.’s reasons, at para. 117). But what if the IAD had considered the issue and reached a reasonable, though incorrect, conclusion? As Bastarache J. warned in Pushpanathan, appellate courts applying reasonableness review would be forced to defer to that decision. In this case, it would result in the deportation of Mr. Mason and Mr. Dleiow from Canada. In future cases, it could result in foreign nationals being returned to countries where they may face persecution, in a manner contrary to Canada’s non‑refoulement obligations (Jamal J.’s reasons, at paras. 104 and 109).\n\nIn my view, this is untenable, and contrary to Parliament’s express intent for serious questions of general importance certified under s. 74 (d) of the IRPA to be reviewed and determined by appellate courts. (2) The Rule of Law", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-87", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 158–160", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The presumption of reasonableness review must also give way to the importance of maintaining the rule of law, which requires that certified questions be answered consistently and definitively (see Society of Composers, at para. 33; Vavilov, at para. 53). I say this for two reasons. (a) The Risk of Arbitrariness Is Unacceptable in This Context\n\nFirst, the rule of law demands a “singular, determinate and final answer” (Vavilov, at para. 32) to a question certified as a serious question of general importance under the IRPA . In Lunyamila, the Federal Court of Appeal reiterated the criteria for certification under s. 74(d): The question must be a serious question that is dispositive of the appeal, transcends the interests of the parties and raises an issue of broad significance or general importance. [Emphasis added; para. 46.] (See also Canada (Immigration and Citizenship) v. Laing, 2021 FCA 194, at para. 11 (CanLII); Canada (Public Safety and Emergency Preparedness) v. XY, 2022 FCA 113, 89 Imm. L.R. (4th) 173, at para. 7).\n\nA question whose answer turns on the unique facts of the case will not be certified (Lunyamila, at para. 46, citing Mudrak v. Canada (Minister of Citizenship and Immigration), 2016 FCA 178, 43 Imm. L.R. (4th) 199). By definition, then, certified questions concern issues of broad significance or general importance within Canada’s immigration and refugee protection regime. In my view, these are exactly the types of questions for which the rule of law demands consistent and definitive answers — and for which the risk of arbitrariness is unacceptable.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-88", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 161", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Vavilov, our Court accepted that legal incoherence is antithetical to the rule of law (para. 72). While the Court rejected “persistent discord within an administrative body” as a standalone category of correctness review, this was based on the ability of a “more robust” form of reasonableness to guard against the risk of arbitrariness: We are not persuaded that the Court should recognize a distinct correctness category for legal questions on which there is persistent discord within an administrative body. In Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, this Court held that “a lack of unanimity [within a tribunal] is the price to pay for the decision-making freedom and independence given to the members of these tribunals”: p. 800; see also Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 28. That said, we agree that the hypothetical scenario suggested by the amici curiae — in which the law’s meaning depends on the identity of the individual decision maker, thereby leading to legal incoherence — is antithetical to the rule of law. In our view, however, the more robust form of reasonableness review set out below, which accounts for the value of consistency and the threat of arbitrariness, is capable, in tandem with internal administrative processes to promote consistency and with legislative oversight (see Domtar, at p. 801), of guarding against threats to the rule of law. [Emphasis added; para. 72.]", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-89", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 162–163", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "There are two issues with even a “robust” form of reasonableness review in the context of certified questions. First, the “internal administrative processes” referenced in Vavilov, in this context, depend on appellate courts resolving disagreements on legal issues of general importance. As the Federal Court of Appeal noted in Huruglica, this process has been welcomed by the IAD and the Refugee Protection Division (“RPD”): . . . for many years, the Federal Court resorted to the certification process under paragraph 74(d) to settle divergent interpretations or disagreements on legal issues of general importance. This Court’s providing the correct answer to certified questions appears to have been welcomed, particularly by the IAD and the RPD, who saw it as helpful in carrying out their functions. [Emphasis added; para. 28.]\n\nIn other words, the certified question process is the very way in which internal disputes are resolved within this administrative scheme, for a specific subset of legal questions. This category of questions may be defined with precision (see Society of Composers, at para. 39). As Paul Daly notes, “the unique features of [Canada’s] immigration regime could allow for correctness review where questions have been certified without having unfortunate consequences in other areas of law” (Certified Questions, References and Reasonableness: Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, April 8, 2022 (online)). In the immigration context, the certified question procedure is “tailor‑made to achieve correctness review on questions of law” (ibid.).", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-90", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 164", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, the risk of arbitrariness may be acceptable in the context of decisions regarding the extent of an income replacement indemnity during a temporary plant closure (as in Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756) or alleged violations of a provincial collective agreement (as in Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221) to use the two examples referred to in Vavilov (para. 72). It is not acceptable when the identity of the individual decision maker is what determines who is permitted to remain in Canada, as in these companion appeals, or in the context of other serious questions of general importance under the IRPA .", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-91", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 165", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "A number of scholars and several interveners in these appeals emphasize the fundamental importance of certified questions, the potential consequences for affected individuals, and the corresponding need for courts to provide correct and definitive answers in this context (see, e.g., J. C. Y. Liew, “The Good, the Bad, and the Ugly: A Preliminary Assessment of Whether the Vavilov Framework Adequately Addresses Concerns of Marginalized Communities in the Immigration Law Context” (2020), 98 Can. Bar Rev. 398, at p. 425; G. Heckman and A. Khoday, “Once More unto the Breach: Confronting the Standard of Review (Again) and the Imperative of Correctness Review when Interpreting the Scope of Refugee Protection” (2019), 42 Dal. L.J. 49, at pp. 62‑68 and 82; I.F., Canadian Association of Refugee Lawyers, at paras. 20‑21; I.F., Canadian Council for Refugees, at paras. 14‑20; I.F., United Nations High Commissioner for Refugees, at paras. 21‑24). I agree with my colleague that the potential consequences of a decision are relevant to the substance of reasonableness review (see para. 69). But those consequences are also relevant to the determination of the standard of review, and to the imperative of providing legally correct answers in certain circumstances.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-92", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 166–168", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "As Professors Heckman and Khoday note, where different decision makers adopt different interpretations of the scope of refugee protection under the IRPA , one claimant may receive protection while another presenting an identical claim may be returned to their country of origin to face persecution. Given the “momentous impact” of these decisions, “the existence of divergent interpretations of these key provisions is arbitrary and antithetical to the rule of law, which demands that the inconsistencies be immediately resolved through correctness review” (p. 68).\n\nRelatedly, correctness review serves to ease the burden on lay applicants, many of whom will be facing life‑changing immigration consequences. The reasonableness of an administrative decision depends, in large part, on the evidence before the decision maker and the submissions made by the parties (Vavilov, at para. 94; see Jamal J.’s reasons, at para. 61). Not all immigration or refugee applicants will have the resources or knowledge to make sophisticated contextual and interpretive arguments. In the context of certified questions, even a robust form of reasonableness review may be insufficient to guard against the risk, and the consequences, of arbitrariness (see Vavilov, at para. 192).\n\nWhile not all certified questions concern issues of admissibility or deportation, I am satisfied that the rule of law nonetheless demands consistent and definitive answers to all questions that are properly certified. I am unable to tolerate the risk of arbitrariness in this context. (b) Consequences for the Justice System as a Whole or Other Institutions of Government", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-93", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 169–170", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, questions certified under s. 74(d) will, by definition, have implications beyond the immediate parties. In addition to their potential impacts on Canada’s international obligations, they may have impacts on criminal law or on other legislation.\n\nFor example, the Citizenship Act allows the Minister to commence an “action”, i.e., in the Federal Court, to have a person declared “inadmissible on security grounds, on grounds of violating human or international rights or on grounds of organized criminality” under s. 34 , 35 , or 37 of the IRPA : Inadmissibility 10.5 (1) On the request of the Minister of Public Safety and Emergency Preparedness, the Minister shall — in the originating document that commences an action under subsection 10.1(1) on the basis that the person obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances, with respect to a fact described in section 34 , 35 or 37 of the Immigration and Refugee Protection Act other than a fact that is also described in paragraph 36(1)(a) or (b) or (2)(a) or (b) of that Act — seek a declaration that the person who is the subject of the action is inadmissible on security grounds, on grounds of violating human or international rights or on grounds of organized criminality under, respectively, subsection 34(1) , paragraph 35(1) (a) or (b) or subsection 37(1) of the Immigration and Refugee Protection Act .", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-94", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 171", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The effect of s. 10.5(1) of the Citizenship Act is therefore to create a form of shared jurisdiction between courts and administrative decision makers over inadmissibility on grounds of security (s. 34), human or international rights violations (s. 35), or organized criminality (s. 37). The implications of this were not argued by the parties in these appeals, including in light of the new category of correctness review recognized by this Court in Society of Composers. However, it is clear that a determination of inadmissibility under s. 34, 35, or 37 — as distinct from inadmissibility on grounds of criminality (s. 36) or other less serious grounds set out in ss. 38 to 41 — has effects beyond the IRPA . Reasonableness review does not adequately safeguard against the need for consistency and legal coherence in this context.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-95", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 172", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Further, as this Court held in Vavilov, certain issues require a high degree of interpretive consistency to ensure conformity with Canada’s international obligations (para. 192). While neither Mr. Mason nor Mr. Dleiow is a Convention refugee, the IAD’s interpretation of s. 34(1)(e) could foreseeably impact Canada’s future compliance with its non‑refoulement obligations (see Jamal J.’s reasons, at paras. 104‑17). My colleague views the IAD’s “fail[ure] to address the legal constraints imposed by international law” as unreasonable (para. 104). With respect, I would have concerns, given the emphasis in Vavilov on a “reasons first” approach, with finding a decision to be “unreasonable” based on arguments that were not put before the administrative decision maker and that do not apply to the individuals actually before that decision maker. Correctness review of certified questions eliminates such concerns and ensures respect for Canada’s international and treaty obligations.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-96", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 173–174", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "The answers to certified questions under the IRPA may also have impacts on criminal law (see, e.g., Tran, at paras. 39‑42). In such situations, a lack of clarity on the scope of inadmissibility under s. 34 may prevent accused persons from making informed decisions about whether to enter into a plea agreement. As Wagner J. (as he then was) noted in R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696 (dissenting, but not on this point), [c]ollateral consequences that affect the accused person’s fundamental interests could have a more significant impact on the accused than the criminal sanction itself. As a result, it may be essential for an accused to be aware of such consequences in order to enter an informed guilty plea. This is particularly true in the immigration context, in which an accused may be exposed to a collateral consequence as serious as deportation. People who are to be deported may experience any number of serious life‑changing consequences. They may be forced to leave a country they have called home for decades. They may return to a country where they no longer have any personal connections, or even speak the language, if they emigrated as children. If they have family in Canada, they and their family members face dislocation or permanent separation. [para. 72]\n\nIn sum, certified questions tend to have significant consequences for the justice system as a whole or for other institutions of government (Vavilov, at para. 59). In many cases, this will arguably place them within the existing category of general questions of law of central importance to the legal system as a whole. If not, the combined effect of their broader significance and Parliament’s intent that they be decided by appellate courts justifies a departure from the presumption of reasonableness review.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-97", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 175–176", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "To be clear, this conclusion would not change the standard of review applicable to the vast majority of administrative decisions under the IRPA . Decisions of the Immigration and Refugee Board, as well as those made by various ministers, government departments, and agencies, would continue to be reviewed on a standard of reasonableness in most cases. It is only a small and distinct subset of legal questions — those certified as raising issues of broad significance or general importance within the statutory scheme — for which the rule of law, in addition to Parliament’s intent, mandates correctness review. III. Application\n\nApplying a standard of review of correctness, I agree with my colleague that inadmissibility under s. 34(1)(e) requires a nexus between the relevant act of violence and with national security or the security of Canada (para. 121). Together with the reasons he identifies, I would briefly emphasize the following points of statutory context.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-98", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "para 177", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "First, the government’s own explanation of the IRPA describes s. 34 as a “national security” provision: This provision makes a person inadmissible to Canada for reasons of national security, including espionage, subversion, and terrorism. This provision clearly states that permanent residents and foreign nationals are inadmissible on security grounds for engaging in terrorism or for being a member of an organization that engages in terrorism. The facts that constitute inadmissibility under this provision include facts arising from omissions and those for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. Other inadmissible grounds relating to security include being a danger to the security of Canada and engaging in acts of violence that would or might endanger the lives or safety of persons in Canada. [Emphasis added.] (Citizenship and Immigration Canada, Bill C‑11: Clause by Clause Analysis (September 2001), at pp. 31‑32)", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-99", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 178–180", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, the serious nature of inadmissibility on security grounds (see Jamal J.’s reasons, at paras. 86‑97) is reinforced by several additional distinctions in the statutory scheme. Under s. 36(1), both foreign nationals and permanent residents may be inadmissible on grounds of serious criminality. However, only foreign nationals may be inadmissible on grounds of criminality (s. 36(2)). The difference between “criminality” and “serious criminality”, for offences committed in Canada, is that serious criminality requires a conviction for an offence punishable by a maximum term of imprisonment of at least 10 years or for an offence for which a sentence of more than 6 months’ imprisonment has been imposed (s. 36(1)(a)). A permanent resident convicted of an offence falling short of these requirements cannot be found inadmissible under s. 36(2).\n\nThe IAD’s interpretation of s. 34(1)(e) eliminates this carefully legislated distinction. A permanent resident who is charged with an act of violence that would not qualify as serious criminality under s. 36(1) could instead be found inadmissible under s. 34(1)(e), even if the alleged act did not result in a conviction.\n\nFurther, s. 64(1) of the IRPA denies a right of appeal to permanent residents or foreign nationals found inadmissible on grounds of security under s. 34, among other serious categories of inadmissibility: No appeal for inadmissibility 64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security [(s. 34)], violating human or international rights [(s. 35)], serious criminality [(s. 36(1))] or organized criminality [(s. 37)].", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-100", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 181–183", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "Thus, a foreign national convicted of assault, an act of violence, and found inadmissible by the Immigration Division (“ID”) on grounds of criminality under s. 36(2) may appeal that finding to the IAD. If the same conduct could ground inadmissibility under s. 34(1)(e) — as the IAD held in this case — the foreign national would lose the ability to appeal. That person would be better off being convicted, and found inadmissible under s. 36(2), than if their charges were dropped or stayed and they were instead found inadmissible under s. 34(1)(e).\n\nClearly, there is potential overlap between “acts of violence” contemplated in s. 34(1)(e) and “criminality” addressed in s. 36. The implication of the respective treatment of these sections throughout the IRPA is that inadmissibility on security grounds, under s. 34, is more serious than inadmissibility on grounds of criminality. As Grammond J. noted in Mr. Mason’s case, the IAD’s interpretation of s. 34(1)(e) “brings under the most severe category of inadmissibility a vast range of conduct that includes acts that are below the thresholds set by section 36” (F.C. reasons, Mason, at para. 50). Given the careful wording of s. 36, this cannot have been Parliament’s intention.\n\nThird, I would return to s. 10.5(1) of the Citizenship Act , which also distinguishes between facts described in ss. 34, 35, and 37 of the IRPA and those described in s. 36. This, too, reinforces the fact that inadmissibility under s. 34 is considered among the gravest forms of inadmissibility and that the section should be interpreted as applying only to acts of violence with a nexus to national security.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-101", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 184–186", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "This conclusion is consistent with the only prior interpretations of s. 34(1)(e) and its predecessor, s. 19(1)(g) of the Immigration Act. In X (Re), 2017 CanLII 146735 (I.R.B. (Imm. Div.)), Member King held that a series of common assaults could not ground inadmissibility under s. 34(1)(e): I conclude that paragraph 34(1)(e) cannot be interpreted to include the type of one‑on‑one violent acts that exist in this case. While assaults against individuals are undesirable, they cannot be considered to be a threat to the safety of persons in Canada and the security of Canadian society, as contemplated by this section of the IRPA . [para. 42]\n\nMember King also distinguished the circumstances in X (Re) from those before the Federal Court in Moumdjian v. Canada (Security Intelligence Review Committee), [1999] 4 F.C. 624 (C.A.), which were “more obviously related to the security of Canada” and dealt with a conspiracy to assassinate a Turkish diplomat in Canada (paras. 77‑78; see also Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174 (T.D.)).\n\nFor these reasons, in addition to those identified by my colleague and by Grammond J. in the Federal Court, I would conclude that inadmissibility under s. 34(1)(e) requires a nexus between the relevant act of violence and with national security or the security of Canada. However, it remains the task of administrative decision makers under the IRPA to apply this interpretation going forward, including determining which acts of violence may indeed qualify as a threat to national security or the security of Canada. IV. Conclusion", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-20081-102", + "doc_type": "caselaw", + "act_code": "2023 SCC 21", + "act_short": "Mason", + "act_name": "Mason v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Mason v. Canada (Citizenship and Immigration), 2023 SCC 21", + "marginal_note": "paras 187–189", + "heading": "Inadmissibility under IRPA s. 34(1)(e) for acts of violence endangering safety in Canada; reasonableness review", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court has made it clear that the focus of reasonableness review is on “the decision the administrative decision maker actually made”, not on the conclusion the court would have reached in the decision maker’s place (Vavilov, at para. 15; see Jamal J.’s reasons, at para. 8). Yet in the context of certified questions under the IRPA , this Court has repeatedly provided definitive, correct answers to disputed questions of statutory interpretation, including when applying a reasonableness standard of review.\n\nMy colleague does so again in this case. While I agree that the IAD’s interpretation of s. 34(1)(e) was unreasonable, I do not accept that Parliament intended for courts to defer to reasonable but legally incorrect answers to this or other certified questions. Invariably, these questions transcend the interests of the parties and raise issues of broad significance and general importance within Canada’s immigration and refugee protection regime. These are the exact types of questions for which the rule of law demands — and Parliament expressly intended for appellate courts to provide — correct answers (see Vavilov, at paras. 10 and 69‑70). As required by the principles and framework set out in Vavilov, I would recognize certified questions under the IRPA as a new category of correctness review moving forward. V. Disposition\n\nIn the result, I agree with my colleague’s disposition (para. 123). I would allow the appeals, set aside the decisions of the Federal Court of Appeal and allow the applications for judicial review. In Mr. Mason’s appeal, I would quash the IAD decision thus restoring the ID decision. In Mr. Dleiow’s appeal, I would quash the ID decision and deportation order. Appeals allowed.", + "current_to": "2023-09-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20081/index.do" + }, + { + "id": "scc-16803-1", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 1–4", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Côté J. — Canada’s Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), recognizes that there are important social, cultural and economic benefits to immigration. It also recognizes that successful integration of permanent residents involves mutual obligations for those new immigrants and for Canadian society.\n\nThis appeal concerns the obligation of permanent residents to avoid “serious criminality”, as set out in s. 36(1) (a) of the IRPA . This obligation is breached when a permanent resident is convicted of a federal offence punishable by a maximum term of imprisonment of at least 10 years, or of a federal offence for which a term of imprisonment of more than 6 months has been imposed.\n\nThe appellant, Thanh Tam Tran, was convicted of a federal offence and received a 12-month conditional sentence. At issue in this appeal is whether a conditional sentence consists of a “term of imprisonment” for the purposes of s. 36(1)(a) and whether, when the maximum sentence for an offence has changed over time, the “maximum term of imprisonment” referred to at s. 36(1) should be taken to be the maximum sentence that could have been imposed at the time of the commission of the offence, of the conviction, of sentencing or of the determination as to the permanent resident’s admissibility to Canada.\n\nFor the reasons that follow, I would allow the appeal. I. Background", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-2", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 5–6", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 36(1) (a) of the IRPA provides the basis for finding a permanent resident inadmissible to Canada on grounds of “serious criminality”: 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; Inadmissibility can lead to loss of status and removal from Canada.\n\nIf a Canada Border Services Agency (“CBSA”) officer is of the opinion that a permanent resident is inadmissible, that officer may prepare a report setting out the relevant facts and transmit that report to the Minister of Public Safety and Emergency Preparedness (“Minister”) (IRPA , s. 44(1) ). If the Minister is of the opinion that the report is well founded, the Minister may refer the report to the Immigration Division of the Immigration and Refugee Board (“Immigration Division”) for an admissibility hearing (s. 44(2)). However, even if he is of the opinion that the report is well founded, the Minister retains some discretion not to refer it to the Immigration Division.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-3", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 7–9", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "If the Minister does refer the report to the Immigration Division, an admissibility hearing is held for the permanent resident, and the Immigration Division must either recognize that person’s right to enter Canada (IRPA , s. 45 (a)), authorize him or her to enter Canada for further examination (s. 45(c)), or make a removal order against that person (s. 45(d)). If a removal order is made, that person’s permanent resident status is lost (IRPA , s. 46(1) (c)). Although a right to appeal to the Immigration Appeal Division exists against a decision to make a removal order against a permanent resident (IRPA , s. 63(3) ), there is no right to appeal by a permanent resident who has been found inadmissible on grounds of serious criminality if the finding of inadmissibility was “with respect to a crime that was punished in Canada by a term of imprisonment of at least six months” (IRPA , s. 64(2) ).\n\nThis appeal concerns the judicial review of a decision by the Minister to refer a report concerning Mr. Tran’s admissibility to the Immigration Division.\n\nMr. Tran is a citizen of Vietnam. In 1989, he acquired permanent resident status in Canada. In March 2011, he was involved in a marihuana grow operation containing approximately 915 plants and was charged with production of a controlled substance, contrary to s. 7(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“CDSA ”). At the time of the commission of the offence, the maximum penalty if convicted was seven years of imprisonment (s. 7(2)(b)).", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-4", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 10–13", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "On November 6, 2012, legislation came into effect (Safe Streets and Communities Act, S.C. 2012, c. 1, s. 41) increasing the maximum sentence for this offence to 14 years of imprisonment and providing for a new minimum sentence of 2 years of imprisonment if the number of plants produced was more than 500 (CDSA , s. 7(2) (b)(v)).\n\nOn November 29, 2012, Mr. Tran was convicted of the charge against him. On January 18, 2013, he received a 12-month conditional sentence of imprisonment, to be served in the community. II. Decisional History A. Administrative Decisions\n\nOn July 26, 2013, a CBSA officer prepared a report stating that Mr. Tran was inadmissible to Canada under s. 36(1) (a) of the IRPA . A delegate of the Minister referred Mr. Tran’s case to the Immigration Division for an admissibility hearing. This referral was withdrawn on September 10, 2013, in view of legislative changes to appeal rights under s. 64(2) of the IRPA . Mr. Tran was given an opportunity to make additional submissions as to why a removal order should not be sought against him.\n\nOn October 4, 2013, Mr. Tran provided written submissions in which he argued that he did not fall within the purview of s. 36 because: (1) the conditional sentence order made against him was not a “term of imprisonment”, and therefore a “term of imprisonment of more than six months” had not been imposed; and (2) the CDSA amendments raising the maximum sentence for the offence for which he was convicted were not retroactively applicable to him, and therefore the offence, at the time he committed it, was not “punishable by a maximum term of imprisonment of at least 10 years”. Mr. Tran also made submissions on various discretionary factors in support of his position that his case did not warrant referral to the Immigration Division.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-5", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 14", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "On October 7, 2013, a second CBSA officer submitted another report (“Report”) regarding Mr. Tran to a delegate of the Minister. The Report states, in part: I recommend that this report be referred to an admissibility hearing and a deportation order be issued. . . . I have reviewed counsel’s submissions carefully and thoroughly, and given thought to each relevant point. Many are legal arguments that do not fall into the scope of my duties in this matter. In looking at my responsibility under the Act, I am guided by CIC Enforcement Manual ENF 6, which states I should consider the following non-exhaustive list of factors. I address each of them below, with consideration to additional and relevant points raised by counsel. [Emphasis added.] (A.R., vol. I, at p. 1) The Report then canvasses conditions in Mr. Tran’s home country of Vietnam, his degree of establishment in Canada, and the best interests of his children. Notably, the Report lists a series of arrests and charges without conviction, and a conviction for impaired driving, which are cited in support of a conclusion that Mr. Tran tends to get arrested every couple of years. By failing to acknowledge any of his past problems, particularly his very recent conviction, it is my opinion that [Mr. Tran] is not accepting responsibility for his actions. Based on the little information before me, I can only assume he will reoffend because he has done so in the past and because he has not demonstrated any inclination to take responsibility for anything beyond what he thinks immigration officials are aware of. . . . . . . Based on all of the above information, and in consideration of the submissions made by counsel, it is my opinion that this report should be referred to a hearing. [Mr.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-6", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 14–15", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Tran] has been involved in a serious criminal offence. The evidence provided is that he has been involved in criminal activity in the past and that he is not taking full responsibility for his actions. The mitigating factors (establishment, family, hardship in Vietnam, etc.) are overshadowed by the seriousness of the offence, [Mr. Tran]’s conduct in society, and the lack of any indication his behaviour will improve. (A.R., vol. I, at p. 3)\n\nOn October 10, 2013, the Minister’s delegate endorsed the Report and referred the matter for an admissibility hearing before the Immigration Division. Mr. Tran then applied for judicial review of the delegate’s decision. B. Judicial Review in the Federal Court, 2014 FC 1040, 31 Imm. L.R. (4th) 160", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-7", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 16", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Justice O’Reilly found the decision to be unreasonable. He allowed Mr. Tran’s application for judicial review and ordered that another officer consider the question of Mr. Tran’s inadmissibility. The judge found that whether a conditional sentence is a “term of imprisonment” varies according to the statutory context; that conditional sentences are meant as an alternative to incarceration for less serious offences; and that Mr. Tran’s conditional sentence was not a “term of imprisonment” under the IRPA . Ergo, Mr. Tran had not been sentenced to a “term of imprisonment of more than six months”. On the maximum term of imprisonment question, O’Reilly J. found that s. 36(1)(a) referred to the maximum punishment available at the time of conviction (para. 20): The maximum sentence at the time of his conviction was 7 years. While the maximum sentence was subsequently raised to 14 years, Mr. Tran was not punishable by a sentence of that duration. Therefore, the offence of which he was convicted did not come within s. 36(1)(a), and the officer’s decision to the contrary was unreasonable. The judge also found the officer’s reliance on unproven allegations of criminal activity to be unreasonable.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-8", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 17–18", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Justice O’Reilly certified two questions of general importance, thus permitting an appeal to the Federal Court of Appeal under s. 74 (d) of the IRPA : 1. Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code [R.S.C. 1985, c. C-46 ] a “term of imprisonment” under s. 36(1) (a) of the IRPA ? 2. Does the phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1) (a) of the IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined? (2015 FC 899) C. Federal Court of Appeal, 2015 FCA 237, [2016] 2 F.C.R. 459\n\nJustice Gauthier, for a unanimous Federal Court of Appeal, allowed the Minister’s appeal. She found that even if the reviewing judge’s interpretation of s. 36(1)(a) was correct, he had nevertheless failed to do what he was required to do under a reasonableness standard on judicial review: to assess whether the interpretation adopted by the administrative decision maker fell within the range of interpretations defensible on the law and facts.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-9", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 19", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Gauthier J.A. found that the interpretation of s. 36(1)(a) adopted by the Minister’s delegate was not unreasonable. Regarding the actual term of imprisonment imposed (the first certified question), she held that it was not unreasonable to construe a conditional sentence as a “term of imprisonment” under s. 36(1)(a). She added that to say that a conditional sentence is more lenient than similar terms of incarceration does not mean that Parliament does not nevertheless consider the offence in question serious enough to warrant inadmissibility. She noted that the parliamentary committee debates about lowering the threshold of the term of imprisonment beyond which there is no right to appeal inadmissibility findings to the Immigration Appeal Division (IRPA , s. 64(2) ) included three proposals to exclude conditional sentences, each of which was defeated. She explained that if Parliament considers a conditional sentence of at least six months to be sufficiently serious to warrant the loss of appeal rights, it was not unreasonable for the Minister’s delegate to interpret a conditional sentence as a “term of imprisonment” under s. 36(1)(a).", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-10", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 20–21", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "With respect to “punishable by a maximum term of imprisonment of at least 10 years”, Gauthier J.A. found that “punishable” refers to the offence under the Act of Parliament and not to what could be imposed on any particular offender. She was of the view that the context of s. 36(1)(a) supports a conclusion that the test is objective rather than subjective. She found that it was not unreasonable to conclude that the relevant point in time is when admissibility is being assessed, since admissibility should be assessed against Canada’s prevailing views of the seriousness of the offence in question. She was also of the view that s. 11( i ) of the Canadian Charter of Rights and Freedoms did not apply because proceedings before the Minister’s delegate are neither criminal nor penal. III. Preliminary Matters\n\nPrior to tackling the statutory interpretation questions at the heart of this appeal, I will address two preliminary matters. First, to be clear, the decision under review is that of the Minister’s delegate, taken pursuant to s. 44(2) of the IRPA , to refer the matter to the Immigration Division for an admissibility hearing. While the Minister’s delegate merely adopted the Report ― and that Report is all that is available in support of the decisions taken at the s. 44(1) and s. 44(2) stages ― it is nevertheless the Minister’s delegate’s decision that was under review and not that of the officer.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-11", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 22–24", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, while courts have the discretion to hear an application for judicial review prior to the completion of the administrative process and the exhaustion of appeal mechanisms, they should exercise restraint before doing so (Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, at paras. 35-36; D. J. M. Brown and J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at topic 3:4100). In this case, the parties have not asked this Court to revisit the decisions of the courts below to hear the application, and I am of the view that this Court should respect those decisions. IV. Analysis\n\nThe modern principle of statutory interpretation is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). Applying this approach, I am of the view that, under either standard of review, the assumed interpretation of s. 36(1)(a) by the Minister’s delegate cannot stand. A. Conditional Sentences Are Not Included in “Term of Imprisonment”\n\nI cannot, on either standard of review, accept the interpretation that conditional sentences are captured in the meaning of “term of imprisonment”. Such an interpretation must be rejected for at least three reasons.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-12", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 25–26", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "First, the purpose of s. 36(1)(a) is to define “serious criminality” for permanent residents convicted of an offence in Canada. It is clear from the wording of the provision that whether or not an imposed sentence can establish “serious criminality” depends on its length. Length is the gauge. It must be “more than six months”. However, the seriousness of criminality punished by a certain length of jail sentence is not the same as the seriousness of criminality punished by an equally long conditional sentence. In other words, length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of the permanent resident.\n\nChief Justice Lamer explained in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 44, that “a conditional sentence, even with stringent conditions, will usually be a more lenient sentence than a jail term of equivalent duration”. He elaborated as follows (at para. 52): A judge does not impose a fixed sentence of “x months” in the abstract, without having in mind where that sentence will be served. Furthermore, when a conditional sentence is chosen, its duration will depend on the type of conditions imposed. Therefore, the duration of the sentence should not be determined separately from the determination of its venue. [Citations omitted.]", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-13", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 27", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "The dissymmetry between the length of jail terms and the length of conditional sentences was usefully illustrated by counsel for Mr. Tran. On the one hand, there are cases in which mitigating factors prompted courts to replace jail terms of less than six months with conditional sentences longer than six months (e.g. R. v. Shah, 2003 BCCA 294, 182 B.C.A.C. 142; R. v. Saundercook-Menard, 2008 ONCA 493; R. v. Chapman, 2007 YKSC 55; R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.)). On the other hand, there are cases in which aggravating factors led courts to replace conditional sentences longer than six months with jail terms shorter than six months (e.g. R. v. Keller, 2009 ABCA 418, 469 A.R. 151; R. v. Sandhu, 2014 ONCJ 95; R. v. Kasakan, 2006 SKCA 14, [2006] 8 W.W.R. 23; R. v. Lebar, 2010 ONCA 220, 101 O.R. (3d) 263). Notably, in the case at bar, Mr. Tran asked the Court of Appeal for British Columbia to replace his 12-month conditional sentence with a custodial sentence of less than 6 months (A.F., at para. 18).", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-14", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 28", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Not only is length an unreliable indicator of “serious criminality” when comparing jail sentences to conditional sentences, but it may not even be a reliable measure across conditional sentences because of the disparate conditions attached to them. More fundamentally, conditional sentences generally indicate less “serious criminality” than jail terms. As Lamer C.J. said, a “conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders” (Proulx, at para. 21; see also R. v. Knoblauch, 2000 SCC 58, [2000] 2 S.C.R. 780, at para. 102). Thus, interpreting “a term of imprisonment of more than six months” as including both prison sentences and conditional sentences undermines the efficacy of using length to evaluate the seriousness of criminality.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-15", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 29", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, the meaning of “term of imprisonment” varies according to the statutory context. In some instances, the word “imprisonment” is used in the Criminal Code to capture conditional sentences (R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, at para. 25; Proulx, at para. 29). But that is not always the case. In R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674, at para. 14, Justice Fish concluded that there is no consistent meaning for the word “imprisonment” in the Criminal Code : . . . “imprisonment” in the phrases “sentence of imprisonment” and “term of imprisonment” does not bear a uniform meaning for all purposes of the Criminal Code . In several instances, these terms necessarily contemplate incarceration. Nor is there a consistent meaning across other statutes. Critically, its meaning in ss. 36(1) (a) and 64 of the IRPA was interpreted by this Court in Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, at paras. 11 and 13, to mean “prison”: . . . the IRPA creates a new scheme whereby persons sentenced to more than six months in prison are inadmissible: IRPA , s. 36(1) (a). If they have been sentenced to a prison term of more than two years then they are denied a right to appeal their removal order: IRPA , s. 64 . Provisions allowing judicial review mitigate the finality of these provisions, as do appeals under humanitarian and compassionate grounds and pre-removal risk assessments. However, the Act is clear: a prison term of over six months will bar entry to Canada; a prison term of over two years bans an appeal. . . . In summary, the provisions of the IRPA and the Minister’s comments indicate that the purpose of enacting the IRPA , and in particular s.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-16", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 29–30", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "64, was to efficiently remove criminals sentenced to prison terms over six months from the country. [Emphasis added.] While not necessarily determinative, this existing interpretation of “term of imprisonment” in the context of the IRPA fortifies my conclusion in this case.\n\nThe Minister says that, in recent amendments to ss. 50 (b) and 64(2) of the IRPA , the exclusion of conditional sentences from the meaning of “term of imprisonment” was explicitly rejected. I do not agree with this interpretation of legislative history. It is useful to note as a starting point that the six-month threshold originated in the Immigration Act, 1976, S.C. 1976-77, c. 52, s. 27(1)(d) ― before the introduction of conditional sentences as a sentencing option in Canada ― and was later kept in the IRPA in 2002. In 2013, the threshold for denial of appeal rights set out in s. 64(2) was reduced from a “term of imprisonment” of at least two years to a “term of imprisonment” of at least six months (S.C. 2013, c. 16, s. 24). The Minister points to committee debates surrounding those amendments ― debates in which proposals to exclude conditional sentences from counting toward the s. 64(2) threshold were rejected. Specifically, the Minister’s argument rests on the rejection of three proposals by the House of Commons and Senate committees tasked with examining amendments. However, since the proposed amendments addressed more than just conditional sentences[1] and had to do with changes to s. 64(2) rather than to s. 36(1)(a), I cannot draw any meaningful inferences from the rejection of those proposals.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-17", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 31", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, my interpretation avoids absurd results. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 27, Justice Iacobucci explained the presumption that the legislature does not intend absurd consequences: It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté [P.-A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)], an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile ([R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994)], at p. 88).", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-18", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 32–34", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow. As previously mentioned, conditional sentences are “for less serious and non-dangerous offenders” (Proulx, at para. 21). Thus, more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes ― shorter because they are served in jail rather than in the community. It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six-month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA (s. 3(1) (h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.\n\nIt would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they can remain in Canada, as Mr. Tran has done in this case. Conditional sentences are designed as an alternative to incarceration in order to encourage rehabilitation, reduce the rate of incarceration, and improve the effectiveness of sentencing (Proulx, at para. 20). These objectives would be sabotaged if individuals who are subject to conditional sentences sought to replace them with prison terms, thinking the latter to be their only path for a future in the Canadian communities from which incarceration would remove them.\n\nFor these reasons, the phrase “term of imprisonment” in s. 36(1) (a) of the IRPA cannot, by either standard of review, be understood to include conditional sentences. B. The Maximum Term Is Determined as of the Time of the Commission of the Offence", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-19", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 35–36", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Turning to the interpretation of “punishable by a maximum term”, in my view, a contextual reading of s. 36(1)(a) supports only one conclusion: the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence.\n\nSection 36(1)(a) begins with “having been convicted”, which sets the temporal marker at the time of conviction. As counsel for Mr. Tran underscored during oral argument, the fact of a conviction precedes the two disjunctive clauses: the maximum term and the actual term imposed. Both are rooted in the fact of having been convicted. It is at the moment of conviction that the two disjunctive clauses become operable, and it is with reference to that time that the clauses are to be understood.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-20", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 37–38", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "By the time of Mr. Tran’s conviction (November 29, 2012) and sentencing (January 18, 2013), the maximum sentence for an offence under s. 7(1) of the CDSA had increased from imprisonment for 7 years to imprisonment for 14 years. However, in view of s. 11( i ) of the Charter , Mr. Tran, or anyone else in his position, could not receive a sentence greater than seven years. This is so because production of a controlled substance, contrary to s. 7(1) of the CDSA , is a criminal offence. Hence, sentences for convictions under that provision must not offend s. 11( i ) of the Charter which provides: 11. Any person charged with an offence has the right . . . (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. Accordingly, the maximum sentence Mr. Tran could have been sentenced to upon his conviction is limited by the maximum sentence available at the time of the commission of the offence. Mr. Tran was not punishable by a term of imprisonment of at least 10 years.\n\nThe Court of Appeal held that “punishable by a maximum term of imprisonment of at least 10 years” could be interpreted without reference to Mr. Tran or to a person in his position. I disagree. The criterion cannot simply be the abstract maximum penalty divorced from the actual “permanent resident . . . convicted” in a particular case. In my view, “punishable by a maximum term of imprisonment of at least 10 years” is to be understood as referring to the circumstances of the actual offender or of others in similar circumstances.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-21", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 39", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "This interpretation aligns with the purpose of the IRPA , as outlined in s. 3: 3 (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada; . . . (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; (d) to see that families are reunited in Canada; (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; . . . (h) to protect public health and safety and to maintain the security of Canadian society; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and (j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-22", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 40", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "As stated above, the IRPA aims to permit Canada to obtain the benefits of immigration, while recognizing the need for security and outlining the obligations of permanent residents. The Minister emphasizes the IRPA ’s security objective. Yet, as the Chief Justice explained in Medovarski, the security objective in the IRPA “is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada” (para. 10). The obligation under the IRPA to behave lawfully includes not engaging in “serious criminality” as defined in s. 36(1). So long as this obligation is met, the IRPA ’s objectives related to “successful integration” will remain relevant to permanent residents, and the IRPA ’s objectives related to the “benefits of immigration” and “security” will be furthered.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-23", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 41", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "A similar interaction between the mutual obligations of the state and of individuals, in the criminal law context, has been described as follows: The state’s duty to provide a framework for security may be presented as part of a bargain between the state and its citizens, a bargain in which a measure of security is provided in return for a measure of obedience. . . . . . . . . . The fundamental duty of justice requires the state to recognise certain rights of individuals in its dealings with them; notably, in the sphere of criminal law, the state should respect the rule of law and the principle of legality, so that citizens as rational agents may plan their lives so as to avoid criminal conviction. (A. Ashworth, Positive Obligations in Criminal Law (2013), at pp. 100-101) This description is apposite in the immigration law context. Permanent residents too must be able to “plan their lives”. Their obligations must be communicated to them in advance. As Lon Fuller warned, a legal system must “publicize, or at least . . . make available to the affected party, the rules he is expected to observe” (The Morality of Law (rev. ed. 1969), at p. 39). When Mr. Tran committed his offence, he could not have been aware that doing so was an act of “serious criminality” that might breach his obligations and lead to deportation.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-24", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 42", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Minister relies on Medovarski, at para. 47, for the proposition that permanent residents cannot expect that “the law will not change from time to time”. The Minister argues that admissibility under s. 36(1)(a) must be tested against Parliament’s views of the seriousness of the offence at the time of the admissibility decision. I do not agree. While Parliament is entitled to change its views on the seriousness of a crime, it is not entitled to alter the mutual obligations between permanent residents and Canadian society without doing so clearly and unambiguously. In this case, it has failed to do so. As such, s. 36(1)(a) must be interpreted in a way that respects these mutual obligations. The right to remain in Canada is conditional, but it is conditional on complying with knowable obligations. Accordingly, the relevant date for assessing serious criminality under s. 36(1)(a) is the date of the commission of the offence, not the date of the admissibility decision.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-25", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 43–44", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "The presumption against retrospectivity lends further support to this conclusion. While I agree with the Court of Appeal that s. 11( i ) of the Charter does not apply to the decision of the Minister’s delegate because the proceedings were neither criminal nor penal, the presumption against retrospectivity is a rule of statutory interpretation that is available in the instant case. The purpose of this presumption is to protect acquired rights and to prevent a change in the law from “look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction” (Driedger (1983), at p. 186). The presumption works such that “statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act” (Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, at p. 279; see also British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at para. 71).\n\nThe presumption against retrospectivity engages the rule of law. Lord Diplock explained that the rule of law “requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it” (Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G., [1975] A.C. 591 (H.L.), at p. 638). As this Court explained in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 70, the rule of law “vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs”.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-26", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 45–47", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "The presumption against retrospectivity also bespeaks fairness (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 25). For example, sentencing judges are required to consider immigration consequences (R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739). It would raise issues of fairness to introduce a new collateral consequence after sentencing that would have been relevant before sentencing. As Mr. Tran points out, a permanent resident convicted of marihuana production 25 years ago would suddenly find themselves inadmissible years after having served the associated sentence. Such an outcome would not only offend fairness and the rule of law, but would also undermine the decision of the sentencing judge who decades ago crafted an appropriate sentence without knowledge of additional deportation consequences.\n\nThe Minister argues that the presumption against retrospectivity cannot assist Mr. Tran because this Court’s decision in Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301, precludes its application. I disagree.\n\nIn Brosseau, this Court held that the presumption will not apply if the new prejudicial consequence at issue is designed to protect the public rather than as a punishment for a prior event. The fact that s. 36(1) (a) of the IRPA reflects “an intent to prioritize security” (Medovarski, at para. 10) is not, in itself, sufficient to bring it within the “public protection” exception contemplated in Brosseau. To interpret the public protection exception as inclusive of all legislation that can be said to be broadly aimed at public protection would ignore the purpose underlying the presumption against retrospectivity.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-27", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 48–49", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "The presumption is a tool for discerning the intended temporal scope of legislation. In the absence of an indication that Parliament has considered retrospectivity and the potential for it to have unfair effects, the presumption must be that Parliament did not intend them: The absence of a general requirement of legislative prospectivity exists despite the fact that retrospective and retroactive legislation can overturn settled expectations and is sometimes perceived as unjust: see E. Edinger, “Retrospectivity in Law” (1995), 29 U.B.C. L. Rev. 5, at p. 13. Those who perceive it as such can perhaps take comfort in the rules of statutory interpretation that require the legislature to indicate clearly any desired retroactive or retrospective effects. Such rules ensure that the legislature has turned its mind to such effects and “determined that the benefits of retroactivity (or retrospectivity) outweigh the potential for disruption or unfairness”: Landgraf v. USI Film Products, 511 U.S. 244 (1994), at p. 268. [Emphasis added.] (Imperial Tobacco, at para. 71, per Major J.)\n\nThe presumption exists to ensure that laws will only apply retrospectively where Parliament has clearly signaled that it has weighed the benefits of retrospectivity with its potential unfairness. Otherwise, we presume that Parliament did not intend such effects.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-28", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 50", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Ordinarily, express language or necessary implication (Gustavson Drilling, at p. 279) provides this necessary indication that Parliament has turned its mind to the issue of retrospectivity. The “public protection” exception permits protective legislation to operate retrospectively absent express language or necessary implication, provided that legislative intent otherwise supports doing so. But, in accordance with the underlying purpose of the presumption, the exception is only triggered where the design of the penalty itself signals that Parliament has weighed the benefits of retrospectivity against its potential for unfairness. This will be the case where there is a clear nexus between the protective measure and the risks to the public associated with the prior conduct to which it attaches. In such cases, as in Brosseau, the scope of protection is aligned with the specific risks posed by persons who have engaged in specific harmful conduct and is tailored to preventing those risks prospectively (see Brosseau, at pp. 319-20, citing R. v. Vine (1875), L.R. 10 Q.B. 195, at p. 199; see also In re A Solicitor’s Clerk, [1957] 1 W.L.R. 1219 (Q.B.)).", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-29", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 51–52", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 36(1) (a) of the IRPA fails to provide such a clear nexus for two reasons, both of which are tied to the fact that Parliament relied on criminal sentences as a gauge for “serious criminality”. First, by not associating “serious criminality” with specific offences and instead relying on the sentences they attract, Parliament contemplated that the range of offences constituting “serious criminality” can expand and contract over time. This suggests that Parliament intended to tailor the penalty to prevailing views about a particular conduct, not to the prevention of risks associated with that conduct (F.C.A. reasons, at para. 58). Second, as “serious criminality” is defined by reference to criminal sentences, the scope of public protection it affords necessarily captures criminal sentencing considerations that extend beyond “public protection”, including punishment (see R. v. Hooyer, 2016 ONCA 44, 129 O.R. (3d) 81, at para. 42; K.R.J., at paras. 31-32).\n\nAs such, s. 36(1)(a) does not engage the “public protection” exception because — in the absence of a clear nexus between the risk and the protective measures available in response — it does not signal that Parliament weighed the potential for unfairness and the protective benefits of requiring that the class of non-citizens inadmissible for serious criminality remain perfectly aligned with the class of offences that s. 36(1)(a) deems “serious” at any point in time.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-30", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "paras 53–55", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "For these reasons, I am of the view that “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence. The maximum sentence that Mr. Tran could have received at that time was only seven years. Thus he was not convicted of an offence “punishable by a maximum term of imprisonment of at least 10 years”. C. Decision by the Minister’s Delegate to Refer\n\nThe Minister’s delegate formed the opinion that the Report on Mr. Tran’s inadmissibility for serious criminality was well founded, and he referred the Report to the Immigration Division on that basis. Because that opinion was premised on an untenable interpretation of the grounds for inadmissibility under s. 36(1)(a), his decision to refer the Report cannot be sustained. It is therefore unnecessary for me to consider whether he properly exercised his discretion under s. 44(2). V. Conclusion\n\nI would allow the appeal, quash the decision of the Minister’s delegate, and remit the matter to a different delegate.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-16803-31", + "doc_type": "caselaw", + "act_code": "2017 SCC 50", + "act_short": "Tran", + "act_name": "Tran v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50", + "marginal_note": "para 56", + "heading": "Serious criminality and inadmissibility under IRPA s. 36; the meaning of a term of imprisonment and an offence punishable by", + "part": "Supreme Court of Canada", + "division": "", + "text": "Additionally, while this Court’s analysis is not limited to the certified questions, in the interest of providing guidance on the legal questions addressed by the Federal Court and Federal Court of Appeal, I would answer those questions as follows: 1. Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code a “term of imprisonment” under s. 36(1) (a) of the IRPA ? ― No. 2. Does the phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1) (a) of the IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined? ― It refers to the maximum term of imprisonment available at the time of the commission of the offence. Appeal allowed.", + "current_to": "2017-10-19", + "last_amended": "", + "history": "Also reported: [2017] 2 SCR 289", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" + }, + { + "id": "scc-15647-1", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 1–3", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "The smuggling of human beings across international frontiers is a matter of increasing concern all over the world. Those who are smuggled pay large sums for what are frequently life-threatening journeys to countries for which they have no documentation or right of entry. Some of these migrants are refugees who have a well-founded fear of persecution in their home country and a right to protection under Canadian and international law. The smugglers, for their part, cynically prey on these people’s desperate search for better lives to enrich themselves without heed to the risks their victims face. The smugglers’ activities are often controlled by extensive transnational criminal organizations which Canada and other states seek to combat through multilateral cooperation. Canada is a party to a number of international instruments aimed both at protecting refugees and combatting human smuggling. These commitments are reflected in the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), and elsewhere in Canadian law.\n\nThese appeals concern s. 37(1) (b) of the IRPA , which renders a person inadmissible to Canada, and effectively denies that person access to refugee determination procedures, if he or she has engaged in, in the context of transnational crime, activities such as people smuggling, trafficking in persons or money laundering.\n\nThe appellants were all found inadmissible to Canada under s. 37(1) (b) of the IRPA on the basis of an interpretation that did not require that the conduct leading to inadmissibility be for profit or be connected with an organized criminal operation. Their situations vary. However, all say they were simply helping fellow asylum-seekers flee persecution, and were not engaged in people smuggling.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-2", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 4–7", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "Three questions arise. First, is “people smuggling” in s. 37(1)(b) confined to activities conducted, “directly or indirectly”, for “a financial or other material benefit”? Second, what limits flow from s. 37(1), which provides that a person is declared inadmissible on the grounds of “organized criminality”? Third, what is the effect of the requirement in s. 37(1)(b) that the smuggling be “in the context of transnational crime”?\n\nI conclude that s. 37(1) (b) of the IRPA applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. In coming to this conclusion, I outline the type of conduct that may render a person inadmissible to Canada and disqualify the person from the refugee determination process on grounds of organized criminality. I find, consistently with my reasons in the companion appeal in R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, that acts of humanitarian and mutual aid (including aid between family members) do not constitute people smuggling under the IRPA .\n\nI would return these matters to the Immigration and Refugee Board (“Board”) for a new hearing in accordance with these reasons. II. Facts and Judicial History A. Facts\n\nMr. Hernandez is a native of Cuba who was accepted as a refugee by the United States in 2001. Two years later, he purchased a boat with two others and used it to transport 48 Cubans to the United States without the knowledge of U.S. authorities. Convicted in the United States of alien smuggling and receiving a deportation order from the U.S., he came to Canada and claimed refugee protection.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-3", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 8–11", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "B306, J.P., G.J. and B010 are among a group of nearly 500 Tamils from Sri Lanka who boarded the cargo ship Sun Sea in Thailand. The organizers of the voyage promised to transport them to Canada for sums ranging from $20,000 to $30,000 per person. Shortly after departure, the Thai crew abandoned the ship, leaving the asylum-seekers on board to their own devices. Twelve of the migrants took over various duties during the three-month voyage across the Pacific Ocean to Canada. The ship was dilapidated, unsafe and crowded. Food was in short supply and the fear of interception was constant.\n\nB010 worked two three-hour shifts in the engine room each day, monitoring the temperature, water and oil level of the equipment, without, he says, remuneration or benefit.\n\nJ.P., who was accompanied by his wife G.J., stood lookout, read the GPS and radar, and acted as an assistant navigator during the voyage, in return for which he and his wife lived in crew quarters and benefited from more humane conditions than most of the migrants. G.J. was initially ruled inadmissible for consideration as a refugee under s. 42 (a) of the IRPA , as an accompanying family member of a person ruled inadmissible. She has since been admitted as a refugee to Canada, rendering her appeal in this case moot. However, her husband has been declared inadmissible under s. 37(1)(b) because of his work on the ship, and faces potential deportation.\n\nB306 volunteered to act as a cook and lookout in order to receive better rations because, he asserts, he was hungry and in poor health. He cooked three meals a day for the crew, and used a telescope to spot approaching trawlers and notify the crew so that passengers could be hidden below deck to avoid interception.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-4", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 12–15", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "The IRPA contemplates two streams of refugee claimants — people who apply for refugee status from outside the country and obtain a visa to enter Canada (s. 99(2)); and people who apply from inside Canada (s. 99(3)). The majority of refugee claimants to Canada fall into the first stream. The Sun Sea passengers and Mr. Hernandez fell into the second stream.\n\nMigrants in the second stream face deportation under either of two provisions. First, they may be treated as inadmissible under s. 41 of the IRPA , and made subject to a conditional removal order pursuant to s. 44. Second, they may be declared inadmissible under s. 37(1) (b) of the IRPA on grounds of organized criminal people smuggling.\n\nMost of the Sun Sea migrants — 451 of the 492 — were ruled inadmissible under s. 41 and issued conditional removal orders. The appellants, however, were dealt with under s. 37(1)(b), on the ground that they had been engaged in organized criminal smuggling. The result of being ruled inadmissible under s. 37(1)(b) is that the refugee claimant is peremptorily excluded from Canada without consideration of his or her claim on the merits: s. 101(1)(f). B. Judicial History\n\nThe Board found the appellants inadmissible to Canada, on the basis that s. 37(1) (b) of the IRPA covers all acts of assistance to illegal migrants and, in particular, does not require a profit motive. It ruled that Mr. Hernandez was also inadmissible under s. 36(1)(b) (serious criminality) because of his prior conviction in the U.S. of alien smuggling.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-5", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 16–18", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "On judicial review to the Federal Court, different judges took different views on the scope of s. 37(1)(b). B010’s application was rejected (Noël J., 2012 FC 569, [2014] 1 F.C.R. 95), while the applications of J.P. and G.J., B306 and Mr. Hernandez were allowed (Mosley J., 2012 FC 1466, [2014] 2 F.C.R. 146; Gagné J., 2012 FC 1282, [2014] 2 F.C.R. 128; and Zinn J., 2012 FC 1417, 422 F.T.R. 159, respectively).\n\nThe cases were appealed to the Federal Court of Appeal, which opted for a broad view of the activity caught by s. 37(1)(b). B010’s appeal was rejected (Evans, Dawson and Stratas JJ.A., 2013 FCA 87, [2014] 4 F.C.R. 326) on the ground that s. 37(1)(b) catches all acts of assistance to undocumented migrants, and in particular, does not require that the activity be conducted for financial or other material benefit. Taking the same broad view of s. 37(1)(b) in the remaining cases, the court (Sharlow, Mainville and Near JJ.A., 2013 FCA 262, [2014] 4 F.C.R. 371) allowed the appeals and reinstated the Board’s decisions of inadmissibility. III. The Issues\n\nThe main issue in these appeals is what conduct makes a person inadmissible to apply for refugee status for having engaged in people smuggling under s. 37(1) (b) of the IRPA . Is it any and all assistance to undocumented migrants to Canada, as the respondent Minister of Citizenship and Immigration and the respondent Minister of Public Safety and Emergency Preparedness (collectively referred to as “the Ministers”) contend? Or is the prohibited range of conduct narrower, as the appellants contend? If so, precisely what is the range of conduct caught by s. 37(1)(b)?", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-6", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 19–23", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "The answer to this latter question depends on the answer to three more particular questions. First, is “people smuggling” in s. 37(1) (b) of the IRPA limited to activity that is done “in order to obtain, directly or indirectly, a financial or other material benefit”? Second, what limits may be inferred from s. 37(1), which provides that a person is declared inadmissible on the grounds of “organized criminality”? Third, what is the effect of the requirement in s. 37(1)(b) that the smuggling be “in the context of transnational crime”?\n\nIf s. 37(1)(b) applies broadly to any assistance to undocumented migrants, as the Federal Court of Appeal held, a further issue arises: Does s. 37(1)(b) violate s. 7 of the Canadian Charter of Rights and Freedoms in a manner that is not justified under s. 1, with the result that it is unconstitutional? Related to this is whether s. 7 of the Charter is properly engaged at the stage of determining admissibility as a refugee.\n\nA final issue arises from B306’s assertion that his conduct is non-culpable because of duress and necessity. IV. Discussion A. Standard of Review\n\nThe parties disagree as to the standard of review applicable to the Board’s decision.\n\nThere are potentially two issues to which the standard of review may be relevant: (1) the statutory interpretation of s. 37(1) (b) of the IRPA ; and (2) the Board’s application of s. 37(1)(b). This case turns on the statutory interpretation of the provision, which is determinative.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-7", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 24–27", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "Recent decisions in the Federal Court of Appeal have taken different views on whether questions of statutory interpretation involving consideration of international instruments should attract review on the standard of correctness or of reasonableness. In Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324, [2014] 2 F.C.R. 224, at paras. 22-25, the court applied a correctness standard; while in B010’s appeal, now before us, the court concluded that reasonableness was the appropriate standard.\n\nThis being the home statute of the tribunal and Ministers, there is a presumption that the standard of review is reasonableness: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 34. The question is whether this presumption has been displaced in the appeals before us.\n\nWe find it unnecessary to resolve this issue on these appeals. In our view, for the reasons discussed below, the interpretation of s. 37(1) (b) of the IRPA taken by the Board and supported by the Ministers was not within the range of reasonable interpretations. B. The Conduct Captured by Section 37(1)(b)\n\nAt the relevant time, s. 37(1)(b) provided as follows: 37. (1) [Organized criminality] A permanent resident or a foreign national is inadmissible on grounds of organized criminality for . . . (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. In my view, there is no important difference between the English and French versions. (See relevant IRPA provisions set out in Appendix A.)", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-8", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 28–30", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 37(1) (b) of the IRPA performs a gatekeeping function. People who fall within it cannot have their refugee claims determined, regardless of the merits. The respondents say that the term “people smuggling” in s. 37(1)(b) should be interpreted broadly as barring anyone who knowingly assisted a person to enter a country illegally. This would catch the appellants, who argue for a narrower interpretation that would allow them to have their refugee claims determined in Canada.\n\nThe range of conduct captured by s. 37(1) (b) of the IRPA is a matter of statutory interpretation. The modern rule of statutory interpretation requires us to read “the words of an Act . . . in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 7; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. (1) The Words of Section 37(1)(b) Read in Their Ordinary and Grammatical Sense\n\nThe starting point for the interpretation of s. 37(1)(b) is the ordinary and grammatical sense of the words used. At this point, the question is what the ordinary and grammatical sense of the words suggests on two questions: whether s. 37(1)(b) is confined to activity directed at “financial or other material benefit”; and what limits may be inferred from the phrases “on grounds of organized criminality” and “in the context of transnational crime”.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-9", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 31–34", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "Under the marginal note “Organized criminality”, s. 37(1) provides that “a foreign national is inadmissible on grounds of organized criminality for . . . (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering”.\n\nThe meaning of each of these phrases must be considered.\n\nI begin with the ordinary and grammatical meaning of “people smuggling”. The appellants argue that the ordinary meaning of this phrase involves a financial or other benefit to the smuggler. I do not agree. There is no express mention in s. 37(1)(b) of a profit motive and I cannot find a financial benefit requirement on the ordinary and grammatical meaning of the words alone.\n\nI turn next to the ordinary and grammatical meaning of “organized criminality”. While the phrase “organized crime” is generally understood as involving a profit motive, the phrase “organized criminality” is arguably broad enough to include organized criminal acts for non-pecuniary motives, such as terrorism or sexual exploitation.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-10", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 35–36", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "This leaves the ordinary and grammatical sense of the phrase “in the context of transnational crime”. The meaning of this phrase is arguably broader than that of “organized criminality”. First, the words “in the context of” suggest that a loose connection to transnational crime may suffice. Second, the phrase “transnational crime” is arguably broader than “transnational organized crime”. However, when the words “in the context of transnational crime” are read together with the words “organized criminality” with a view to finding a harmonious meaning for s. 37(1)(b) as a whole, it becomes clear that “transnational crime” in s. 37(1)(b), construed in its ordinary and grammatical sense, refers to organized transnational crime. Since the provision renders people inadmissible on grounds of “organized criminality”, the words “transnational crime” cannot be read as including non-organized individual criminality. In summary, the words of s. 37(1)(b), read in their ordinary and grammatical sense, suggest that the provision applies to acts of illegally bringing people into Canada, if that act is connected to transnational organized criminal activity. (2) The Statutory Context of Section 37(1)(b)\n\nReference to the ordinary grammatical sense of the words used is only the first step in the statutory interpretation of s. 37(1)(b). A statutory provision should be interpreted in its entire context and harmoniously with the scheme of the legislation. As we will see, the broader statutory context of s. 37(1)(b) suggests that the provision targets organized criminal activity in people smuggling for financial or other material benefit, and not asylum-seekers rendering each other mutual assistance.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-11", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 37–38", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "The first contextual consideration is the relationship between s. 37(1)(b) and the rest of s. 37(1). Subsection (1) introduces the concept of inadmissibility on grounds of organized criminality. Paragraphs (a) and (b) are instances of organized criminality. Section 37(1)(a) makes membership in criminal organizations one ground of inadmissibility, while s. 37(1)(b) makes “engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering” another. Read in the context of s. 37(1) as a whole, it is clear that the focus of s. 37(1)(b), like that of s. 37(1)(a), is organized criminal activity.\n\nThe second consideration is the relationship between inadmissibility for people smuggling under s. 37(1)(b) and other grounds of inadmissibility under the IRPA . The respondents argue that interpreting “people smuggling” to require a financial or other material benefit requirement fails to catch smuggling undertaken for other nefarious purposes, such as sexual exploitation or terrorism. Confining s. 37(1)(b) to financial or other material benefit will thus leave a gap in the statutory scheme, they argue. This contention overlooks other inadmissibility provisions in the IRPA . A person whose admission is not barred by s. 37(1)(b) may nevertheless be denied entry to Canada on grounds of national security (s. 34); human or international rights violations (s. 35); serious criminality (s. 36(1)); and criminality simpliciter (s. 36(2)).", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-12", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 39–41", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "A third contextual consideration is the relationship between s. 37(1)(b) and the related offence provision in s. 117. As I explain in Appulonappa (released concurrently), the language of s. 117 is broad enough to catch anyone who assists an undocumented person to enter Canada. The respondents in these appeals in effect suggest that the narrower language of s. 37(1)(b) should be “read up” to mirror the broad language of s. 117, as was done by the Board and the Federal Court of Appeal.\n\nI cannot agree. In Appulonappa, I conclude that the broad scope of s. 117(1) exceeds Parliament’s purpose, rendering it overbroad and to this extent unconstitutional. A provision that is unconstitutionally overbroad cannot be used to widen a narrower provision. In any event, where Parliament has placed specific limits within a provision, these cannot be ignored on the ground that Parliament has cast a different provision more broadly.\n\nA fourth contextual consideration is the definition of “criminal organization” in s. 467.1(1) of the Criminal Code , R.S.C. 1985, c. C-46 . The Criminal Code definition of “criminal organization” expressly requires a financial or other material benefit: “criminal organization” means a group, however organized, that (a) is composed of three or more persons in or outside Canada; and (b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-13", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 42–44", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "While “organized criminality” and “criminal organization” are not identical phrases, they are logically and linguistically related and, absent countervailing considerations, should be given a consistent interpretation.\n\nThe legislative history of s. 37(1)(b) of the IRPA and the Criminal Code ’s definition of “criminal organization” strongly support this conclusion. Both provisions were enacted in anticipation of Canada’s obligations under the United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209 (generally known, and referred to here, as the “Palermo Convention”). As explained below, the Protocol against the Smuggling of Migrants by Land, Sea and Air, 2241 U.N.T.S. 480 (“Smuggling Protocol”), is one of three protocols under this convention. (See relevant provisions in Appendix B.)\n\nThe Criminal Code definition of “criminal organization” was amended in 2001 by Bill C-24, An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts, S.C. 2001, c. 32. On second reading of the bill in the House of Commons, the Minister of Justice at the time, the Hon. Anne McLellan, explained that the new definition reflected Canada’s signature of the Palermo Convention (which was not then in force): House of Commons Debates, vol. 137, No. 046, 1st Sess., 37th Parl., April 23, 2001, at p. 2954. See also R. J. Currie and J. Rikhof, International & Transnational Criminal Law (2nd ed. 2013), at pp. 345-46.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-14", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 45–46", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "Similarly, s. 37(1) (b) of the IRPA was enacted in 2001 to deal with organized criminality in people smuggling and related activities pursuant to Canada’s obligations under the Palermo Convention and the related Smuggling Protocol. As the Assistant Deputy Minister, Citizenship and Immigration, Joan Atkinson put it at the time, s. 37(1) introduced “new inadmissibility provisions specifically directed at that form of organized crime”: House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001 (online), at 10:40.\n\nThus the apparent similarity between the IRPA concept of “organized criminality” and the Criminal Code concept of “criminal organization” is no coincidence. Both provisions were enacted to give effect to the same international regime for the suppression of transnational crimes such as people smuggling. Section 37(1)(b) should be interpreted harmoniously with the Criminal Code ’s definition of “criminal organization” as involving a material, including financial, benefit. (3) The International Context of Section 37(1)(b) (a) International Law as Context: General Relevance", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-15", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "para 47", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court has previously explained that the values and principles of customary and conventional international law form part of the context in which Canadian laws are enacted: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53. This follows from the fact that to interpret a Canadian law in a way that conflicts with Canada’s international obligations risks incursion by the courts in the executive’s conduct of foreign affairs and censure under international law. The contextual significance of international law is all the more clear where the provision to be construed “has been enacted with a view towards implementing international obligations”: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1371. That is the case with the IRPA , the refugee protection aspects of which serve principally to discharge Canada’s obligations under the 1951 Convention relating to the Status of Refugees, 189 U.N.T.S. 150, and its 1967 Protocol relating to the Status of Refugees, 606 U.N.T.S. 267 (together the “Refugee Convention”), but also, as explained below, Canada’s obligations under the Smuggling Protocol.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-16", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "para 48", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "In keeping with the international context in which Canadian legislation is enacted, this Court has repeatedly endorsed and applied the interpretive presumption that legislation conforms with the state’s international obligations: see, e.g., Zingre v. The Queen, [1981] 2 S.C.R. 392, at pp. 409-10; Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at paras. 128-31; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401, at para. 39; United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3, at para. 25; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 34; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, at para. 113. This interpretive presumption is not peculiar to Canada. It is a feature of legal interpretation around the world. See generally A. Nollkaemper, National Courts and the International Rule of Law (2011), at c. 7.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-17", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 49–50", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "These principles, derived from the case law, direct us to relevant international instruments at the context stage of statutory interpretation. Furthermore, two interpretive provisions from s. 3 of the IRPA make Parliament’s presumed intent to conform to Canada’s international obligations explicit. Section 3(2)(b) expressly identifies one of the statute’s objectives as “to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement”. Similarly, s. 3(3)(f) instructs courts to construe and apply the IRPA in a manner that “complies with international human rights instruments to which Canada is signatory” (see de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655, at paras. 82-83 and 87). There can be no doubt that the Refugee Convention is such an instrument, building as it does on the right of persons to seek and to enjoy asylum from persecution in other countries as set out in art. 14 of the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948).\n\nI conclude that it is appropriate to consider the relevant international instruments in interpreting s. 37(1)(b): the Palermo Convention and its protocols, and the Refugee Convention. (b) The Palermo Convention and Its Protocols", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-18", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "para 51", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "In addition to the international context of Canadian legislation generally, and of the IRPA in particular, s. 37(1)(b) finds its origin in international law, namely the Palermo Convention and the related Smuggling Protocol. The Palermo Convention was opened for signature in December 2000, together with two supplementing protocols, the Smuggling Protocol and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2237 U.N.T.S. 319 (the “Human Trafficking Protocol”). (A third protocol, concerning the illicit manufacturing of and trafficking in firearms, was adopted later but has no bearing on these appeals.) A key distinction between the Smuggling Protocol and the Human Trafficking Protocol lies in the concepts of coercion and consent. The latter protocol defines human trafficking as involving threats or use of force, abduction, deception, fraud or other forms of coercion against the trafficked person. By contrast, the Smuggling Protocol applies to cases where the smuggler and the smuggled agree that the former will procure the latter’s illegal entry into a state, in consideration of a financial or other material benefit. While the lines between trafficking and smuggling may sometimes blur, the presence or absence of consent remains an organizing principle of the two Palermo Convention protocols.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-19", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 52–53", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "Article 6(1)(a) of the Smuggling Protocol requires states parties to adopt measures to establish migrant smuggling as a criminal offence, defined as procuring illegal entry of a person into a state of which the person is not a national or a permanent resident, “in order to obtain, directly or indirectly, a financial or other material benefit”: art. 3(a). The term “financial or other material benefit” is also found in the definition of “organized criminal group” in art. 2(a) of the Palermo Convention.\n\nBoth the Palermo Convention and its two original protocols were drafted with a view to the need of states parties to meet their obligations under the earlier Refugee Convention. This is specifically reflected in art. 19(1) of the Smuggling Protocol, the “saving clause”, which provides as follows: 1. Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein. (See also art. 14(1) of the Human Trafficking Protocol.)", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-20", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 54–56", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "The IRPA was enacted soon after the adoption of the Palermo regime, in the drafting of which Canada played an active role. This timing suggests that Parliament had these instruments in mind when it enacted s. 37(1)(b). The parliamentary record supports this inference. As Assistant Deputy Minister Atkinson said in explaining s. 37 before the House of Commons Standing Committee on Citizenship and Immigration: Clause 37 deals with organized criminality. I would point out paragraph 37(1)(b), which is new. That is organized criminality: (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. So those are new inadmissibility provisions specifically directed at that form of organized crime. (Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001 (online), at 10:40)\n\nSection 37(1)(b)’s express mention of the three activities of (a) people smuggling, (b) trafficking in persons, and (c) money laundering, indisputably refers to the Palermo Convention and its two protocols. Money laundering is addressed in the Palermo Convention itself, while its protocols target the other two activities.\n\nIn summary, it is clear that s. 37(1)(b) must be read against the backdrop of Canada’s commitment to combatting criminal activity related to people smuggling. (c) The Refugee Convention", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-21", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 57–59", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "Article 31(1) of the Refugee Convention provides: 1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. The import of this prohibition for domestic admissibility provisions is clear. As A. T. Gallagher and F. David put it, “an individual cannot be denied refugee status — or, most important, the opportunity to make a claim for such status through fair assessment procedures — solely because of the way in which that person sought or secured entry into the country of destination”: The International Law of Migrant Smuggling (2014), at p. 165. Obstructed or delayed access to the refugee process is a “penalty” within the meaning of art. 31(1) of the Refugee Convention: ibid., at pp. 163-64.\n\nIt is undisputable that just as s. 37(1)(b) must be read against the backdrop of Canada’s international commitments to combat organized criminal people smuggling and related activities, it must also be read in a way that is consistent with the Refugee Convention.\n\nHaving introduced the relevant international instruments, I now turn to what light they shed on the interpretive issues arising from s. 37(1)(b) — first, whether s. 37(1)(b) requires activity directed at financial or other material benefit; and second, what conduct, more generally, is caught by s. 37(1)(b). (d) Financial or Other Material Benefit: Perspective From the International Instruments", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-22", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 60–61", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Smuggling Protocol defines migrant smuggling as the procurement of illegal entry “in order to obtain, directly or indirectly, a financial or other material benefit”. The purpose of including financial or other material benefit as part of the definition of migrant smuggling is explained in the interpretive notes to art. 6: The reference to “a financial or other material benefit” as an element of the offences set forth in paragraph 1 was included in order to emphasize that the intention was to include the activities of organized criminal groups acting for profit, but to exclude the activities of those who provided support to migrants for humanitarian reasons or on the basis of close family ties. It was not the intention of the protocol to criminalize the activities of family members or support groups such as religious or non-governmental organizations. (United Nations Office on Drugs and Crime, Travaux préparatoires of the negotiations for the elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols thereto (2006), at p. 489) As noted by Gallagher and David: “The relevant Interpretative Notes to the Protocol affirm that it was not the intention of the Protocol to criminalize the activities of family members or support groups such as religious or nongovernmental organizations” (p. 366). It thus “seems reasonably clear that certain benefits that may accrue from being involved in migrant smuggling, such as family reunification and safety, do not constitute ‘material’ benefits”: ibid.\n\nThe Refugee Convention supports the same conclusion.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-23", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 62–64", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "Article 31(1) of the Refugee Convention prohibits states parties from penalizing refugees on account of their illegal entry. To interpret s. 37(1)(b) as omitting a financial or other benefit limitation would appear inconsistent with this rule.\n\nThe respondents contend that art. 31(1) of the Refugee Convention refers only to criminal penalties. This interpretation runs counter to the purpose of art. 31(1) and the weight of academic commentary: J. C. Hathaway, The Rights of Refugees Under International Law (2005), at pp. 409-12; Gallagher and David, at pp. 164-68; G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law (3rd ed. 2007), at p. 266. The generally accepted view is that denying a person access to the refugee claim process on account of his illegal entry, or for aiding others to enter illegally in their collective flight to safety, is a “penalty” within the meaning of art. 31(1). The law recognizes the reality that refugees often flee in groups and work together to enter a country illegally. Article 31(1) thus does not permit a state to deny refugee protection (or refugee determination procedures) to refugees solely because they have aided others to enter illegally in an unremunerated, collective flight to safety. Rather, it targets those who assist in obtaining illegal entry for financial or other material benefit.\n\nArticle 5 of the Palermo Convention provides further assistance in understanding the conduct targeted by s. 37(1)(b).", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-24", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 65–67", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "Informed by the Palermo Convention, the phrase “in the context of transnational crime”, under s. 37(1) (b), of the IRPA captures the acts of (1) participating in the group’s actual criminal activities with knowledge the group has a criminal aim (art. 5(1)(a)(ii)a.); (2) participating in non-criminal acts of the group, with knowledge that the acts will further the group’s criminal aim (art. 5(1)(a)(ii)b.); or (3) organizing, abetting or counselling a serious crime involving the organized criminal group (art. 5(1)(b)).\n\nThis supports the view that acts committed by people who are not themselves members of criminal organizations, who do not act in knowing furtherance of a criminal aim of such organizations, or who do not organize, abet or counsel serious crimes involving such organizations, do not fall within s. 37(1)(b). (4) Harmonious Reading With the Intention of Parliament\n\nFinally, I come to the requirement that we interpret s. 37(1)(b) harmoniously with the intention of Parliament. In this case, Parliament’s intention is gleaned mainly from the considerations that have already been discussed — the words of the provision, the legislative scheme and the context. The question at this point is whether there is other evidence that may point to a different intention on the part of Parliament.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-25", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "para 68", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "If Parliament, in enacting s. 37(1)(b) in 2001, intended to erase the distinction between those who act for financial or material benefit and those who act for humanitarian purposes or give mutual assistance, one might expect some sign of this in the parliamentary record. But the record reveals no evidence that Parliament sought to ignore this distinction or to target conduct unconnected to transnational organized crime. Rather, the record supports the view that Parliament understood “people smuggling” in the sense that “migrant smuggling” is used in the Smuggling Protocol. There is nothing in the parliamentary record suggesting that Parliament sought to adopt a broader definition of people smuggling. Indeed, the Minister of the day expressly referred to the Palermo Convention and the Smuggling Protocol in her evidence on the new IRPA provisions before the Standing Committee on Citizenship and Immigration, without suggesting an intention to depart from the “financial or other material benefit” limitation (see Evidence, No. 2, 1st Sess., 37th Parl., March 1, 2001 (online), at 9:30 to 9:35).", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-26", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 69–70", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "In addressing s. 117 of what became the IRPA (considered in Appulonappa) before the Standing Committee on Citizenship and Immigration, Assistant Deputy Minister Atkinson testified that the bill did not seek to impose penalties on those who helped refugees come to Canada or those who engaged in smuggling for humanitarian reasons. Discretion (it was said) was conferred on the Attorney General under s. 117(4) as a safeguard to protect from prosecution those seeking to aid refugees on humanitarian grounds: Standing Committee on Citizenship and Immigration, Evidence, No. 9, 1st Sess., 37th Parl., April 5, 2001 (online), at 10:50; and Evidence, No. 27, 1st Sess., 37th Parl., May 17, 2001 (online), at 10:35 to 10:40. While s. 37(1)(b) was not directly addressed, those statements suggest that it was not Parliament’s intent to render refugees inadmissible under s. 37(1)(b) solely for providing mutual assistance to others in the course of their own illegal entry.\n\nTo adopt the interpretation of s. 37(1)(b) urged by the Ministers would lead to anomalous and unintended consequences.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-27", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "para 71", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is well established that Parliament should be presumed not to intend absurd results when it enacts legislation. Take, for example, the scenario proposed by B010 involving a family fleeing persecution, where the mother arranges to procure false travel documents, the father pays for the documents, and the daughter hides the documents as they flee their home (A.F., at para. 59). Upon arrival in Canada, they promptly disclose that their travel documents were false, and claim asylum. Without a financial or material benefit component, each family member has engaged in “people smuggling” and is inadmissible under s. 37(1)(b). As B010 phrases it, “Without the financial benefit requirement, it is not possible to differentiate the ‘smuggler’ from the ‘smuggled’” (ibid., at para. 60). The absurdity flows, in part, from the fact that, if each family member had procured, purchased, and concealed their own travel documents, without providing any mutual aid, it is undisputed that s. 37(1)(b) would not apply. Similarly, if a single person rather than a family arrived under the same circumstances, he or she would not be inadmissible. (5) Conclusion on Section 37(1)(b) as Applied to These Cases", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-28", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 72–73", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "The wording of s. 37(1)(b), its statutory and international contexts, and external indications of the intention of Parliament all lead to the conclusion that this provision targets procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. To justify a finding of inadmissibility against the appellants on the grounds of people smuggling under s. 37(1)(b), the Ministers must establish before the Board that the appellants are people smugglers in this sense. The appellants can escape inadmissibility under s. 37(1)(b) if they merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety. C. The Defences of Duress and Necessity\n\nB306 argues that in the event he is found to fall within s. 37(1)(b), he should be able to raise the criminal law defences of duress and necessity. The Ministers conceded that the defences are available in principle. However, I prefer not to decide the issue, in the absence of full argument on how these defences would fit into the scheme of s. 37(1)(b) as construed in these reasons. This said, I agree with the Federal Court of Appeal that there is no substance to B306’s claim that the Board failed to consider B306’s defences of duress and necessity. D. The Constitutionality of Section 37(1)(b) Under Section 7 of the Charter", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-29", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 74–75", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellants argue in the alternative that s. 37(1) (b) of the IRPA unconstitutionally violates s. 7 of the Charter on the basis that s. 37(1)(b) is overbroad in catching migrants mutually aiding one another and humanitarian workers. As a result, they submit that s. 37(1)(b) is of no force or effect under s. 52(1) of the Constitution Act, 1982 , to the extent it catches these groups. I have concluded that the appellants are entitled to a new hearing on the basis of the proper interpretation of s. 37(1)(b). Therefore, I find it unnecessary to consider the appellants’ constitutional challenge.\n\nThe argument is of no assistance in any event, as s. 7 of the Charter is not engaged at the stage of determining admissibility to Canada under s. 37(1). This Court recently held in Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, that a determination of exclusion from refugee protection under the IRPA did not engage s. 7, because “even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place” (para. 67). It is at this subsequent pre-removal risk assessment stage of the IRPA ’s refugee protection process that s. 7 is typically engaged. The rationale from Febles, which concerned determinations of “exclusion” from refugee status, applies equally to determinations of “inadmissibility” to refugee status under the IRPA . V. Conclusion", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15647-30", + "doc_type": "caselaw", + "act_code": "2015 SCC 58", + "act_short": "B010", + "act_name": "B010 v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "B010 v. Canada (Citizenship and Immigration), 2015 SCC 58", + "marginal_note": "paras 76–78", + "heading": "Inadmissibility for people smuggling under IRPA s. 37(1)(b); organized criminality", + "part": "Supreme Court of Canada", + "division": "", + "text": "The tools of statutory interpretation — plain and grammatical meaning of the words; statutory and international contexts; and legislative intent — all point inexorably to the conclusion that s. 37(1)(b) applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. I conclude that a migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum-seekers in their collective flight to safety is not inadmissible under s. 37(1)(b).\n\nThe appellants were found inadmissible on an erroneous interpretation of s. 37(1)(b). They are entitled to have their admissibility reconsidered on the basis of the interpretation set out in these reasons. I would therefore allow their appeals and remit their cases for reconsideration by the Board. Mr. Hernandez, who was also found inadmissible under s. 36(1)(b), did not contest that finding in these proceedings, and this judgment does not disturb the Board’s determination of that matter.\n\nThe appeals are allowed with costs here and in the courts below.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 704", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" + }, + { + "id": "scc-15648-1", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 1–4", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "On October 17, 2009, a vessel called the Ocean Lady was apprehended off the west coast of Vancouver Island, in British Columbia. Seventy-six people, among them the appellants, were aboard. All were Tamils from Sri Lanka. They claimed to have fled Sri Lanka because their lives were endangered in the aftermath of the civil war in that country. They asked for refugee status in Canada. None had the required legal documentation.\n\nThe Crown claims that the four appellants — the captain and chief crew of the vessel — were the organizers of the venture. The Crown alleges that the majority of passengers each paid, or promised to pay, $30,000 to $40,000 for the voyage.\n\nThe appellants were charged under s. 117 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), which makes it an offence to “organize, induce, aid or abet” the coming into Canada of people in contravention of the IRPA . Consequences of conviction could include lengthy imprisonment and disqualification from consideration as a refugee.\n\nBefore their trial, the appellants challenged the constitutionality of s. 117 of the IRPA , on the ground that it infringes the right to life, liberty and security of the person enshrined in s. 7 of the Canadian Charter of Rights and Freedoms . The trial judge ruled that the provision was unconstitutional because it criminalized not only organized people smuggling, but helping close family members to come to Canada and humanitarian assistance to refugees. The British Columbia Court of Appeal reversed that decision, and found the provision to be constitutional.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-2", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 5–7", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "For the reasons that follow, I conclude that, insofar as s. 117 permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members, it is unconstitutional. II. Facts and Judicial History A. Facts\n\nCanadian authorities intercepted the freighter ship Ocean Lady offshore of Vancouver Island. They found 76 passengers aboard; all were Tamil asylum-seekers from Sri Lanka who had boarded the ship in Southeast Asia: 24 boarded the ship in Indonesia between June and August 2009, and 52 in Thailand in September 2009. None of the 76 migrants had the proper documentation to enter Canada. Most had agreed to pay a sum of between $30,000 and $40,000 to come to Canada. Typically, down payments of $5,000 were exacted prior to boarding, together with undertaking a debt of another $25,000 to $35,000 to be paid subsequent to arrival in Canada.\n\nThe four appellants, Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah, are alleged to have been the point persons for a transnational for-profit operation to smuggle undocumented migrants from Southeast Asia to Canada. They are said to have been responsible for organizing the asylum-seekers in Indonesia and Thailand prior to boarding the freighter, and serving as the chief crew of the ship on the voyage to Canada — Mr. Handasamy as captain, Mr. Thevarajah as chief engineer, and Mr. Kanagarajah and Mr. Appulonappa as key crew members.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-3", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 8–10", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellants were charged with the offence of “Organizing entry into Canada” found in s. 117 of the IRPA , which, at the relevant time, provided: 117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.\n\nThe IRPA was amended by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, ss. 41(1) and 41(4), whereby s. 117(1) was replaced by a new subsection and two subsections were added, which came into force on December 15, 2012. Section 117 as it was at the time of the alleged offences of the appellants is therefore no longer in force. The constitutionality of the current s. 117 is not before us. B. British Columbia Supreme Court, 2013 BCSC 31, 358 D.L.R. (4th) 666\n\nThe appellants brought an application before Silverman J. on a voir dire for a declaration that s. 117 of the IRPA is unconstitutionally overbroad. They did not contend that s. 117 is unconstitutional as it applies to the allegations against them, which are that they were part of a for-profit smuggling operation. However, they argued that s. 117 is unconstitutional because it may lead to the conviction of humanitarian workers or family members assisting asylum-seekers for altruistic reasons. They argued that convicting people in these categories exceeds the legislative intent of s. 117 and infringes the guarantee of liberty contrary to the principle of fundamental justice against overbreadth. This violation of the liberty guarantee in s. 7 of the Charter was not justified under s. 1 of the Charter , they submitted.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-4", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 11–12", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Crown accepted that the purpose of s. 117 was not to convict persons helping close family members come to Canada or persons providing legitimate humanitarian aid to people coming to Canada. However, it argued that this did not render s. 117 overbroad because s. 117(4) of the IRPA required that the Attorney General of Canada authorize prosecution, which would allow him to screen out people in these categories.\n\nSilverman J. concluded that, as the Crown contended, the purpose of s. 117 does not extend to prosecution of genuine humanitarian aid workers or family members. Because s. 117 permits the prosecution of such persons, it violates the s. 7 guarantee of liberty in a way that is overbroad, and hence not in accord with the principles of fundamental justice. Silverman J. held that s. 117 could not be interpreted or “read down” to make it Charter compliant and that the prior consent to prosecution required by s. 117(4) does not save s. 117 from being unconstitutionally overbroad. Nor, in his view, was the overbreadth justified under s. 1 of the Charter . Silverman J. therefore declared s. 117 of the IRPA to be inconsistent with s. 7 of the Charter and hence of no force or effect under s. 52 of the Constitution Act, 1982 . He ordered that the indictments of the appellants be quashed: 2013 BCSC 198. C. British Columbia Court of Appeal, 2014 BCCA 163, 355 B.C.A.C. 98", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-5", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 13–14", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "Before the Court of Appeal, the Crown changed its submission on the purpose of s. 117 of the IRPA . It submitted that s. 117 was enacted to prevent all organizing or assisting of unlawful entry of others into Canada, including assistance to close family members and humanitarian assistance. This, the Crown said, was required to further Canada’s goals of (1) controlling who enters its territory; (2) protecting the health, safety, and security of Canadians; (3) preserving the integrity and efficacy of Canada’s lawful immigration and refugee claims regimes; and (4) promoting international justice and cooperation with other states on matters of security.\n\nThe Court of Appeal accepted this revised submission as the purpose of s. 117 of the IRPA and on that basis held it to be constitutional. Neilson J.A. (Bennett and Hinkson JJ.A. concurring) concluded that Canadian laws criminalizing assistance to undocumented migrants have not historically allowed exceptions based on the offender’s motive or other characteristics. When the provision at issue was enacted in 1988, the question of whether humanitarian workers should be exempted received attention, but Parliament, concerned about “definitional difficulties” and “loopholes”, rejected creating an exception for these groups: para. 107. The purpose of s. 117 therefore aligned with its reach, and the provision was not overbroad.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-6", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 15–18", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The court added that the s. 117(4) requirement of the Attorney General’s consent to prosecute would guard against improper prosecutions on humanitarian grounds, family grounds or other grounds. If the Attorney General were to authorize prosecution of people assisting close family members or providing humanitarian assistance, the vice would not be overbreadth of s. 117(1), but the improper exercise of ministerial discretion under s. 117(4).\n\nIn the result, the Court of Appeal allowed the appeal, overturned the declaration of invalidity, set aside the acquittals and remitted the matter for trial. III. The Statutory Scheme\n\nThe IRPA (relevant provisions set out in Appendix A) is a complex statute dealing with the entry into Canada of foreign nationals through two processes — the immigration process and the refugee protection process. We are here concerned primarily with the refugee protection process. The IRPA aims to establish “fair and efficient [refugee] procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings”: s. 3(2)(e). Both goals are underpinned by Canada’s adhesion to international conventions and protocols, discussed more fully below.\n\nA significant concern for the integrity of Canada’s refugee protection system is the threat posed to it by the entry to Canada of unauthorized persons outside the lawful refugee regime. As part of combating this threat, the IRPA contains two provisions which sanction individuals for helping others to enter Canada without the documents required by border authorities.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-7", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 19–22", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 37(1) (b) of the IRPA renders a person inadmissible to Canada where the person has “engag[ed], in the context of transnational crime”, in people smuggling, and, in effect, prevents that person’s refugee claim from being determined on its merits. Section 117, under the marginal note “Organizing entry into Canada”, creates an offence. At the relevant time, it read: 117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.[1]\n\nSections 117(2) and 117(3) provide penalties of imprisonment and fines. At the time of the charges at issue in this case, s. 121(1) (c) of the IRPA under the marginal note “Aggravating factors”, stipulated that committing the offence for profit was a fact to be considered in sentencing under s. 117.[2]\n\nSubsection (4) provides a screening mechanism for instituting proceedings under s. 117 — prosecutions can proceed only with the consent of the Attorney General.\n\nIn summary, participating in the unauthorized entry of other people into Canada may have two consequences under the IRPA . First, it may result in prosecution and imprisonment and/or substantial fines upon conviction under s. 117. Second, it may render a person who engages in certain proscribed activities inadmissible to Canada under s. 37(1)(b). The first consequence — prosecution under s. 117 — is the subject of this appeal. The second consequence — inadmissibility to Canada — is the subject of the companion appeals in B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704. IV. The Issues", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-8", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 23–25", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Charter applies to foreign nationals entering Canada without the required documentation: Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. Section 7 of the Charter provides: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. As a penal provision with potential sentences up to life imprisonment, it is clear that s. 117 of the IRPA threatens liberty and hence engages s. 7 of the Charter : Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 492.\n\nThe main issue before us is whether s. 117 of the IRPA threatens liberty, protected by s. 7 of the Charter , in a manner contrary to the principles of fundamental justice. If the answer is yes, a second question arises: Is the infringement justified under s. 1 of the Charter ? If the answer to this second question is no, a final question arises: What is the appropriate remedy for the constitutional infirmity in s. 117?\n\nThe appellants contend that s. 117 violates s. 7 of the Charter because the provision catches two categories of people outside its purpose — people who assist close family members to come to Canada and humanitarians who assist those fleeing persecution to come to Canada, in each case without required documents. The appellants say that s. 117 is therefore overbroad, contrary to the principles of fundamental justice. They also argue that s. 117 offends the principles of fundamental justice because its impact on liberty is grossly disproportionate to the conduct it targets, because it is unconstitutionally vague, and because it perpetuates inequality. V. Discussion A. Does Section 117 of the IRPA Violate Section 7 of the Charter ? (1) Overbreadth", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-9", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 26–28", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "A law is said to violate our basic values by being overbroad when “the law goes too far and interferes with some conduct that bears no connection to its objective”: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 101. As stated in Bedford, “[o]verbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others”: para. 113; see also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 85.\n\nThe first step in the overbreadth inquiry is to determine the object of the impugned law. The second step is to determine whether the law deprives individuals of life, liberty or security of the person in cases that do not further that object. To the extent the law does this, it deprives people of s. 7 rights in a manner that infringes the principles of fundamental justice.\n\nThe appellants argue that s. 117 is overbroad, not as it applies to the conduct alleged against them, but as it applies to other reasonably foreseeable situations. It is indeed established that a court may consider “reasonable hypotheticals” to determine whether a law is consistent with the Charter : see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-10", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 29–31", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The first scenario the appellants ask us to consider is the situation of a person assisting a close family member to flee to Canada. The appellants cite as examples a mother carrying her small child, or the father of a household taking his family dependants with him aboard a boat. This scenario could also encompass cases of mutual assistance among unrelated asylum-seekers. Indeed, refugees mutually assisting one another in their collective flight to safety is not meaningfully different from family members assisting one another and, as showed by the companion case B010, is a reasonably foreseeable situation.\n\nThe second scenario advanced by the appellants is the case of a person who, for humanitarian motives, helps people to flee from persecution. History is replete with examples of people who have aided others to flee persecution for humanitarian reasons. Sometimes the person is acting as an individual. Sometimes the person is a member of an organization devoted to helping people flee lands where they face threats and persecution. Church groups may help undocumented people find refugee protection in Canada: House of Commons Debates, vol. VII, 2nd Sess., 33rd Parl., August 12, 1987, at p. 8002 (Hon. Gerry Weiner, Minister of State (Immigration)). Humanitarian aid to fleeing people is not merely hypothetical; it is a past and current reality. (a) The Object of Section 117 of the IRPA\n\nAs discussed, overbreadth analysis turns on whether the reach of the law exceeds its object. The first step is therefore to determine the object of s. 117.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-11", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 32–34", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Crown argues that the purpose of s. 117 is to catch all acts that in any way assist the entry of undocumented migrants. On this interpretation, s. 117 cannot be overbroad. The appellants, by contrast, submit that the offence of “human smuggling” has a narrower purpose than the Crown asserts, making it overbroad in catching all acts of assistance.\n\nAs with statutory interpretation, determining legislative purpose requires us to consider statements of legislative purpose together with the words of the provision, the legislative context, and other relevant factors: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 268-87; R. v. Chartrand, [1994] 2 S.C.R. 864, at pp. 879-82. Where legislation is enacted in the context of international commitments, international law may also be of assistance.\n\nFor the reasons that follow, I agree with the appellants that the purpose of s. 117 is narrower than that asserted by the Crown. The text of s. 117 is admittedly broad. However, a narrow purpose emerges from (1) the international instruments to which Canada has subscribed; (2) the role of s. 117 in relation to the statute as a whole, in particular s. 37(1); (3) the IRPA ’s statements of legislative purpose; (4) the evolution of s. 117; and (5) the parliamentary debates. Considering these indicia of purpose, it becomes evident that the true purpose of s. 117 is to combat people smuggling. The meaning of “people smuggling”, a term found in s. 37(1) (b) of the IRPA , is the subject of the companion case B010, and excludes mere humanitarian conduct, mutual assistance or aid to family members. I conclude that s. 117 violates the Charter by catching these categories of conduct outside the provision’s purpose. (i) The Text of the Provision", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-12", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "para 35", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "At the relevant time, the text of s. 117 read as follows: 117. (1) [Organizing entry into Canada] No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act. (2) [Penalties — fewer than 10 persons] A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable (a) on conviction on indictment (i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or (ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and (b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both. (3) [Penalty — 10 persons or more] A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both. (4) [No proceedings without consent] No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-13", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 36–37", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "All agree that the text of s. 117(1) is broad enough to catch assistance to close family members and humanitarian assistance. It may be argued that since Parliament used these words, that is what it intended. However, the doctrine of overbreadth recognizes that sometimes “the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective”: R. v. Heywood, [1994] 3 S.C.R. 761, at p. 792; Bedford, at para. 101; Carter, at para. 85. The potential for “failures of instrumental rationality”, in which a given law is not a rational means to achieve a legislative objective, requires courts to go further than the text alone, and ask whether other considerations suggest Parliament’s purpose was narrower: Bedford, at para. 107.\n\nBefore leaving the text, it may be noted that despite the broad wording of the subsection that provides the elements of the offence (s. 117(1)), other portions of the text of s. 117 support the view that Parliament’s purpose was not to criminalize family or humanitarian assistance. The marginal note of s. 117, “Organizing entry into Canada”, read with the subheading “Human Smuggling and Trafficking”, while not to be accorded great weight (see Sullivan, at pp. 465-68), suggests that the provision is aimed at activity in connection with the smuggling of persons in the context of organized crime, as contrasted with providing humanitarian assistance or aiding close family members to enter a country without the required documents.[3]", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-14", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 38–40", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "Sections 117(2) and 117(3) also support the view that Parliament’s intent was to catch smuggling activity in the context of organized crime, rather than humanitarian, mutual or family assistance. These subsections provide for significantly increased sanctions based on the number of persons brought in. This suggests a heightened focus on large-scale smuggling operations.\n\nFinally, the requirement in s. 117(4) that no prosecution occur without the Attorney General’s consent suggests that s. 117 was not intended to convict everyone who falls within s. 117(1)’s broad ambit, as discussed more fully below. (ii) Canada’s International Obligations\n\nAs a matter of statutory interpretation, legislation is presumed to comply with Canada’s international obligations, and courts should avoid interpretations that would violate those obligations. Courts must also interpret legislation in a way that reflects the values and principles of customary and conventional international law: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 34. Section 3 of the IRPA also requires that the IRPA be interpreted in a manner that complies with Canada’s international obligations, including “international human rights instruments to which Canada is signatory”: s. 3(3)(f); see also s. 3(2)(b). The relevant international instruments to which Canada has subscribed should therefore shed light on the parliamentary purpose behind s. 117 of the IRPA .", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-15", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 41–42", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The provisions of the IRPA relating to the fight against the assisting of unauthorized entry of persons to Canada respond to Canada’s international commitments related to these matters in the Convention relating to the Status of Refugees, 189 U.N.T.S. 150 (“Refugee Convention”), the United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209, the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2241 U.N.T.S. 480 (“Smuggling Protocol”), and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2237 U.N.T.S. 319.\n\nThe Refugee Convention reflects humanitarian concerns. It provides that states must not impose penalties for illegal entry on refugees who come directly from territories in which their lives or freedom are threatened and who are present on the territory of the foreign state without authorization, “provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”: art. 31(1).", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-16", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "para 43", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "Consistent with this, s. 133 of the IRPA provides that foreign nationals who enter Canada without documents cannot be charged with illegal entry or presence while their refugee claims are pending. As I explain in B010, art. 31(1) of the Refugee Convention seeks to provide immunity for genuine refugees who enter illegally in order to seek refuge. For that protection to be effective, the law must recognize that persons often seek refuge in groups and work together to enter a country illegally. To comply with art. 31(1), a state cannot impose a criminal sanction on refugees solely because they have aided others to enter illegally in their collective flight to safety.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-17", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "para 44", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Smuggling Protocol is concerned with stopping the organized crime of people smuggling. It seeks to prevent and combat the smuggling of migrants and to promote cooperation among states to this end, while protecting the rights of smuggled migrants: art. 2. Article 6(1)(a) requires signatory states to adopt measures to establish migrant smuggling as a criminal offence. The Smuggling Protocol includes as a minimum definition for this offence, procuring illegal entry of a person into a state of which the person is not a national or a permanent resident, “in order to obtain, directly or indirectly, a financial or other material benefit”: art. 3(a). As I explain in B010, the Smuggling Protocol was not directed at family members or humanitarians: paras. 60 and 68. Furthermore, while the Smuggling Protocol permits subscribing states to enact national laws criminalizing migration-related offences, it includes a “saving clause” that provides that nothing in the Smuggling Protocol “shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law”: art. 19(1). It would depart from the balance struck in the Smuggling Protocol to allow prosecution for mutual assistance among refugees, family support and reunification, and humanitarian aid. This suggests that the Crown’s broad interpretation of s. 117’s purpose is inconsistent with the Smuggling Protocol’s object of protecting the rights of smuggled migrants.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-18", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 45–47", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "In dealing with conflicting statements of the legislative objects of a statute, the way forward lies in an interpretation which harmonizes obligations in the international instruments to which Canada is a party in a way that avoids conflict and gives expression to each of the various commitments. I conclude that read together in this way, Canada’s international commitments support the view that the purpose of s. 117 is to permit the robust fight against people smuggling in the context of organized crime. This excludes criminalizing conduct that amounts solely to humanitarian, mutual or family aid. (iii) The Role of Section 117 Within the IRPA\n\nSection 117 of the IRPA must also be read harmoniously with other provisions of the statute.\n\nSection 117 of the IRPA falls under Part 3 of the IRPA , entitled “Enforcement”. Section 117 of the IRPA and the provisions that follow it fall under the subheading “Human Smuggling and Trafficking”. Section 118 creates the offence of human trafficking, leaving s. 117, as noted, to constitute the offence of human smuggling. The only other references in the IRPA to smuggling or trafficking are contained in s. 37(1)(b), which renders inadmissible to Canada a person who has engaged in smuggling or trafficking in persons.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-19", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 48–51", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "As explained in B010, the conduct captured by s. 37(1)(b) is that which is set out in the Smuggling Protocol. In that context, people smuggling only occurs for “financial or other material benefit” and “in the context of transnational crime”. Reading the inadmissibility and enforcement provisions of the IRPA harmoniously and as part of an integrated scheme therefore supports the view that the purpose of s. 117 is to penalize organizing or abetting illegal entry to Canada through acts knowingly connected to and furthering transnational organized crimes or criminal aims, to obtain, directly or indirectly, a financial or other material benefit. This excludes humanitarian, mutual or family assistance. (iv) Statements of Legislative Purpose\n\nThe first, “most direct and authoritative evidence” of the legislative purpose of a provision is found in statements of purpose in the legislation itself — whether at the beginning of a statute, in the section in which a provision is found, or in sections providing interpretive guidelines: Sullivan, at pp. 274-76.\n\nIn Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at paras. 29-30, this Court held that the Refugee Convention has the broad general aim of providing humanitarian refuge for those fleeing persecution while recognizing the need to protect states’ borders.\n\nAs discussed in B010, the object provisions of the IRPA establish that both of these broad goals are important to the IRPA as well. It follows that s. 117 should be interpreted in a balanced way that respects both the security concerns as well as the humanitarian aims of the IRPA . An interpretation of s. 117 that catches all acts of assistance to undocumented migrants arguably allows security concerns to trump the humanitarian aims of the IRPA .", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-20", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "para 52", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Crown’s view that the purpose of s. 117 is to catch all acts of assistance to undocumented migrants relies heavily on the fact that among the purposes of the IRPA is to control Canada’s borders to prevent migrants from entering the country illegally, for reasons of security, health and safety. To be sure, this is an important goal of the IRPA . It is reflected in the s. 3(2)(h) objective “to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals”: see also s. 3(1)(i). It is likewise evinced by the aim “to protect the health and safety of Canadians and to maintain the security of Canadian society”: s. 3(2)(g); see also s. 3(1)(h).", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-21", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 53–54", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "A concern with security is also reflected in the specific legislative objects of An Act to amend the Immigration Act and the Criminal Code in consequence thereof, R.S.C. 1985, c. 29 (4th Supp.), the statute which enacted what later became s. 117 of the IRPA (the “1988 amendments”): 1. The Immigration Act is amended by adding thereto, immediately after section 2 thereof, the following heading and section: Purposes of Amendments 2.1 . . . (a) to preserve for persons in genuine need of protection access to the procedures for determining refugee claims; (b) to control widespread abuse of the procedures for determining refugee claims, particularly in light of organized incidents involving large-scale introduction of persons into Canada to take advantage of those procedures; (c) to deter those who assist in the illegal entry of persons into Canada and thereby minimize the exploitation of and risks to persons seeking to come to Canada; and (d) to respond to security concerns, including the fulfilment of Canada’s obligations in respect of internationally protected persons.\n\nThe same statute, however, also recognized humanitarian commitments, including a stated objective “to preserve for persons in genuine need of protection access to the procedures for determining refugee claims” and concern for “exploitation” and risks to persons wishing to come to Canada: s. 1, adding ss. 2.1(a) and 2.1(c).", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-22", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 55–58", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The IRPA ’s general objects further illustrate the importance of its broad humanitarian aims. Section 3(2)(c) speaks of “Canada’s humanitarian ideals”. The stated objects include “saving lives and offering protection to the displaced and persecuted” and “safe haven to persons with a well-founded fear of persecution”: ss. 3(2)(a) and 3(2)(d). Similarly, the objectives include striving to comply with “international human rights instruments to which Canada is signatory”: s. 3(3)(f); see also s. 3(2)(b).\n\nThe IRPA also reveals a commitment to family, through stated objects of facilitating family reunification in Canada: s. 3(2)(f).\n\nIn sum, while the security goals of the IRPA and the amendment that became s. 117 are important, they do not supplant Canada’s commitment to humanitarian aid and family unity. Both broad aims must be respected. This is accomplished by interpreting s. 117 as targeting organized smuggling operations having a criminal dimension, thereby excluding humanitarian, mutual and family aid. Under the Crown’s interpretation of s. 117, a father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution. This is incompatible with the refugee protection objects of the IRPA and the amendment that became s. 117. (v) The Legislative Evolution of Section 117\n\nThe legislative history of a provision may assist in determining its purpose: Sullivan, at pp. 286-87.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-23", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 59–60", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "Canada has had laws criminalizing the assisting of undocumented migrants to enter the country since 1902. Early incarnations of the offence were focused on organizing illegal arrival by rail or ship, with little concern for the plight of the migrants, who were typically expelled: An Act to amend the Immigration Act, S.C. 1902, c. 14, s. 2; Immigration Act, R.S.C. 1906, c. 93, ss. 65 and 66.\n\nIn 1919, s. 12(4) of An Act to amend The Immigration Act, S.C. 1919, c. 25, made it an offence to transport into Canada, harbour or conceal the entry of prohibited immigrants. The provision was a summary conviction offence, with a maximum penalty of six months imprisonment and/or fines. Broadly similar offences were preserved in the 1952 and 1976 iterations of the Immigration Act.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-24", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "para 61", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "In 1988, “in light of organized incidents involving large-scale introduction of persons into Canada”, amendments introduced a new offence which, with minor changes, is the offence currently found in s. 117 of the IRPA : s. 1 of the 1988 amendments, adding s. 2.1(b). It criminalized third party assistance to undocumented migrants. In so doing, it established maximum penalties where the number of undocumented entrants was small: six months’ imprisonment and/or $2,000 fines on summary conviction, and five years’ imprisonment and/or $10,000 fines on indictment. By contrast, where the undocumented entrants numbered 10 or more, proceedings were exclusively by indictment, and the maximum penalty was 10 years’ imprisonment and/or fines up to $500,000: s. 9 of the 1988 amendments, adding ss. 94.1 and 94.2. Thus, at the inception of what would become s. 117, greater culpability already attached to large-scale breaches, reflecting greater organizational activity on the part of the accused or others with whom the accused acted in concert. The offence created in 1988 also included a new screening mechanism: no proceedings could be instituted under ss. 94.1 or 94.2 without the consent of the Attorney General (s. 9 of the 1988 amendments, adding s. 94.3).", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-25", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "para 62", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The current s. 117 was part of a new comprehensive statute dealing with immigration and refugee protection, the IRPA , enacted in 2001. The offence remained substantially the same as previously, preserving the differing penalties based on scale, and the charge-screening mechanism. However, maximum penalties were significantly increased, while another provision was added to guide sentencing under the offence. Section 121 provided that in determining the penalty to be imposed under s. 117, the court was to take into account (1) bodily harm or death to the migrant; (2) association with a criminal organization; (3) profit from the operation; and (4) harm to or degrading treatment of the migrants. These changes came on the heels of the adoption of the Smuggling Protocol, which obliged state parties to criminalize the smuggling of migrants done for financial or other material benefit and to adopt legislative measures to establish aggravating circumstances such as harm to and degrading treatment of migrants: arts. 6(1) and 6(3). The second factor in s. 121 reflected a more significant link between the offensive conduct and organized crime. The first and fourth factors recognized more serious crime. The third factor may be an indicator of either or both.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-26", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 63–64", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "From this brief survey of the historical evolution of prohibitions on assisting the entry to Canada of undocumented people, I draw the following conclusions: (a) the prohibitions have, for over a century, focused on smuggling activity tied to organizing and furthering the illegal entry, not aid merely incidental to it; (b) successive revisions to the provision have coupled increased penalties with more precise targeting of organized crime-related smuggling activity, and the 2001 revision in particular followed in the footsteps of key developments in international law; and (c) s. 117, from its inception in 1988 and as continued and revised by the IRPA in 2001, provided a filter to screen out assistance not associated with organized criminal smuggling, namely innocent humanitarian acts, mutual aid and assistance to family members. (vi) The Parliamentary Debates\n\nStatements made in the legislature leading up to the enactment of a provision may supply evidence of its purpose: Sullivan, at p. 277; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 37; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para. 25; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 45; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 17.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-27", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "para 65", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The parliamentary debates establish that the original enactment of the offence in 1988 was motivated by incidents of organized large-scale smuggling of undocumented migrants by sea. Concerns were expressed in the debates about protecting the health, safety and security of Canadians and Canadian society, the integrity and efficacy of Canada’s lawful immigration and refugee regimes, and Canada’s ability to control its borders and the domestic and international interests tied to them. Concerns were also expressed about the safety and protection of genuine refugees, and not subjecting humanitarian groups to prosecution. Then-Minister Benoît Bouchard summarized Parliament’s purpose as follows in the Committee meetings of August 25, 1987: We are going to put a stop to the large-scale trafficking of illegal migrants by smugglers. There has been much discussion about amending these sections of the bill. We have all pressed lawyers and legislative drafters to consider alternatives to the current wording. We looked at phrases such as religious group, profit, reward, smuggle and clandestine entry, but every possibility creates loopholes and undermines our ability to prosecute the unscrupulous. We cannot let such individuals escape sanction by adding phrases which create insurmountable problems of proof and create gaps through which the unscrupulous would march. (House of Commons, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-84, No. 9, 2nd Sess., 33rd Parl., at p. 24)", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-28", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "para 66", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "It thus emerges from the 1987 debates that the reason s. 117(1) of the IRPA permits prosecution of those providing humanitarian assistance to fleeing refugees or assistance to close family members is not because Parliament wanted to capture such persons, but because of a drafting dilemma — it was feared that a categorical approach to exceptions would inadequately respond to the multi-faceted and complex nature of real-life smuggling cases. Parliament agreed that those offering humanitarian assistance and mutual aid were not meant to be prosecuted under s. 117 of the IRPA . However, instead of legislatively exempting such people from potential criminal liability, it sought to screen them out at the prosecution stage by requiring the Attorney General’s consent to prosecute.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-29", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "para 67", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The debates on the enactment of the IRPA in 2001 echo these preoccupations. Again, members of Parliament expressed concerns that s. 117 might criminalize people who assist family members to come to Canada or people who provide humanitarian aid to asylum-seekers. The government’s response was that these fears were misplaced because they focused exclusively on s. 117(1) and overlooked s. 117(4) which was expected to prevent these and other unintended prosecutions. The following excerpts from the parliamentary debates summarize those discussions: Mr. John McCallum: . . . we heard a fair amount of testimony in our hearings from people doing humanitarian work, reverends and saintly people, if you will, and the last people in the world we would want to prosecute. Yet, if you read that literally, it looks like some of these people who are helping refugees could be prosecuted. Or if my sister is in a bad country and I help her, it looks like I can be prosecuted. How does that work? Mr. Daniel Therrien [General Counsel]: The protection against such prosecutions is in subclause 117(4), which provides that no prosecution under the smuggling provision can occur without the consent of the Attorney General . . . . . . . Ms. Joan Atkinson [Assistant Deputy Minister]: . . . Subclause 117(4) is what’s in the current act. . . . It is in place . . . in the current act, and as Daniel has said, there has been no prosecution of anyone who was involved in trying to help refugees come to Canada. That is the safeguard. All the circumstances will be reviewed by the Attorney General to put in humanitarian considerations without defining what that means [otherwise] you don’t have the flexibility you need . . .", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-30", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 67–69", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "to be able to consider all the individual circumstances in a case before any decision is taken to prosecute. (House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 27, 1st Sess., 37th Parl., May 17, 2001 (online), at 10:35)\n\nThese excerpts from the parliamentary debates make it clear that Parliament understood that s. 117(1) criminalized assistance to family members and humanitarian assistance, and was relying on ministerial discretion to prevent prosecution. General Counsel Therrien and Assistant Deputy Minister Atkinson did not deny that s. 117 caught these cases, but defended this overreach far beyond any reasonable definition of the targeted smuggling activity on the basis that the Attorney General’s permission under s. 117(4) would be an adequate “safeguard” against inappropriate prosecutions.\n\nIn sum, we may fairly infer the following from the debate surrounding the adoption of s. 117 of the IRPA : From the beginning, the government conceded that the words of s. 117(1) had been cast broadly enough to catch family and humanitarian assistance to undocumented migrants. At the same time, the government made it clear that s. 117 was not intended to catch persons aiding family members or providing humanitarian or mutual aid. The risk would be alleviated, or so the government asserted, by the requirement that the Attorney General authorize prosecutions under s. 117(4) of the IRPA . (vii) Conclusion on the Purpose of Section 117 of the IRPA", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-31", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 70–71", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The foregoing considerations establish that the purpose of s. 117 is to criminalize the smuggling of people into Canada in the context of organized crime, and does not extend to permitting prosecution for simply assisting family or providing humanitarian or mutual aid to undocumented entrants to Canada. A broad punitive goal that would prosecute persons with no connection to and no furtherance of organized crime is not consistent with Parliament’s purpose as evinced by the text of s. 117 read together with Canada’s international commitments, s. 117’s role within the IRPA , the IRPA ’s objects, the history of s. 117, and the parliamentary debates. (b) The Scope of Section 117 of the IRPA\n\nI now turn to the scope of s. 117 of the IRPA to see whether it “goes too far and interferes with some conduct that bears no connection to its objective”: Bedford, at para. 101.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-32", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 72–73", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The scope of s. 117(1) is plain. The provision admits of no ambiguity. Parliament itself understood when it enacted s. 117 that the provision’s reach exceeded its purpose by catching those who provide humanitarian, mutual and family assistance to asylum-seekers coming to Canada, but argued that this overbreadth was not a problem because the Attorney General would not permit the prosecution of such people. We cannot avoid the overbreadth problem by interpreting s. 117(1) as not permitting prosecution of persons providing humanitarian, mutual or family assistance. Such an interpretation would require the Court to ignore the ordinary meaning of the words of s. 117(1), which unambiguously make it an offence to “organize, induce, aid or abet” the undocumented entry. To adopt this suggestion would violate the rule of statutory interpretation that the meaning of the words of the provision should be read in their “grammatical and ordinary sense”: Sullivan, at p. 28. It would also require us to ignore statements from the legislative debate record suggesting Parliament knew in advance that the provision was overbroad.\n\nI conclude that s. 117(1) appears to criminalize some conduct that bears no relation to its objective, raising the spectre that s. 117 as a whole is overbroad. The remaining question is whether the requirement under s. 117(4) that the Attorney General authorize prosecution saves s. 117 from the charge or overbreadth by effectively narrowing the scope of s. 117(1).", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-33", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "para 74", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my view, s. 117(4) does not cure the overbreadth problem created by s. 117(1). Ministerial discretion, whether conscientiously exercised or not, does not negate the fact that s. 117(1) criminalizes conduct beyond Parliament’s object, and that people whom Parliament did not intend to prosecute are therefore at risk of prosecution, conviction and imprisonment. So long as the provision is on the books, and so long as it is not impossible that the Attorney General could consent to prosecute, a person who assists a family member or who provides mutual or humanitarian assistance to an asylum-seeker entering Canada faces a possibility of imprisonment. If the Attorney General were to authorize prosecution of such an individual, despite s. 117’s limited purpose, nothing remains in the provision to prevent conviction and imprisonment. This possibility alone engages s. 7 of the Charter . Further, as this Court unanimously noted in R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 17, per Moldaver J., “prosecutorial discretion provides no answer to the breach of a constitutional duty”. See also Nur.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-34", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "para 75", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "Implicit in the Court of Appeal’s position is that the problem of humanitarian workers or family members prosecuted under s. 117 of the IRPA is a problem of administrative law, and that if a constitutional attack is to be made, it should be made against improper exercise of the Attorney General’s duty under s. 117(4) not to prosecute such persons. I cannot agree. As noted, although the purpose of s. 117 of the IRPA was not to capture such persons, nothing in the provision actually enacted disallows it. As a result, an individual charged with an offence under s. 117 would have difficulty challenging the decision. Further, judicial review of such discretion is not currently available, and there are good reasons why it may not be desirable. As the Court observed in Anderson, judicial oversight of Crown decisions whether to prosecute puts at risk the discrete roles of different actors in our adversarial system: There has been a long-standing and deeply engrained reluctance to permit routine judicial review of the exercise of [prosecutorial] discretion. . . . The imposition of a sweeping duty that opens up for routine judicial review all of the aforementioned decisions is contrary to our constitutional traditions. [para. 32]", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-35", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 76–78", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "It may also be noted that judicial review of the Attorney General’s decision to authorize prosecution under s. 117(4) may have undesirable consequences for other federal statutes in which a similar clause is present: see e.g. Freezing Assets of Corrupt Foreign Officials Act , S.C. 2011, c. 10 ; Foreign Extraterritorial Measures Act , R.S.C. 1985, c. F-29 ; Special Economic Measures Act , S.C. 1992, c. 17 ; Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 ; Geneva Conventions Act , R.S.C. 1985, c. G-3 . At this point, it suffices to note that judicial review does not answer the constitutional non-conformity of s. 117(1).\n\nI conclude that s. 117 of the IRPA is overbroad. The remaining issue is whether this overbreadth is justified under s. 1 of the Charter as a reasonable measure in a free and democratic society. (2) Gross Disproportionality, Vagueness and Equality\n\nIn addition to the overbreadth claim, some of the appellants assert that s. 117 offends s. 7 by depriving persons of liberty in a manner that violates the principles of fundamental justice against gross disproportionality and vagueness. They also claim that equal treatment under the law is a principle of fundamental justice within the meaning of s. 7, and that s. 117 violates it. In view of my conclusion that s. 117 is overbroad, I find it unnecessary to consider these arguments. B. Is the Inconsistency With Section 7 Justified Under Section 1 of the Charter ?", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-36", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 79–81", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The test to determine whether infringement of a right may be constitutionally justified under s. 1 of the Charter was set out in R. v. Oakes, [1986] 1 S.C.R. 103. The first step of the s. 1 analysis asks whether the Crown has demonstrated a pressing and substantial objective: Oakes, at pp. 138-39. The broad purpose of s. 117 of the IRPA is to combat organized crime-related people smuggling, without criminalizing family assistance, mutual aid or humanitarian aid to asylum-seekers coming to Canada. This objective is clearly pressing and substantial.\n\nThe second step of the s. 1 analysis asks whether the legislative objective is rationally connected to the limit the law imposes on the right at issue. Not all applications of s. 117 are rationally connected to the legislative object; notably, s. 117 of the IRPA , as discussed, catches mutual and family as well as humanitarian aid which I earlier concluded was not Parliament’s object to criminalize. However, since other applications of s. 117 are rationally connected to the legislative object, this suffices to satisfy the rational connection stage of the analysis: Heywood, at p. 803. A rational connection, not a complete rational correspondence, is all this branch of Oakes requires.\n\nThe third step of the s. 1 analysis asks whether the offending law is tailored to its objective: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. Evidently, where a law goes too far, it is a challenge to satisfy minimal impairment. In Heywood, Cory J. concluded (at p. 803) that “for the same reasons that [the law] is overly broad, it fails the minimal impairment branch of the s. 1 analysis”. The record here shows why that will not always necessarily be the case.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-37", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 82–84", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Crown’s position appears to be that even though the provision is overbroad, it is nevertheless minimally impairing, because although imperfect, there was no better alternative. As discussed, the government recognized in advance that the provision would catch conduct it did not intend to criminalize. However, Parliament nevertheless enacted an overbroad provision because it was concerned that wording exempting this conduct would create unacceptable loopholes. Section 1 of the Charter does not allow rights to be limited on the basis of bare claims, but requires the Crown to provide a demonstrable justification for inconsistencies with Charter rights: Oakes, at pp. 136-37. The Crown has not satisfied its burden under s. 1. VI. Remedy\n\nSection 52(1) of the Constitution Act, 1982 provides: 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. It follows that s. 117 is of no force or effect to the extent of its inconsistency with the Charter .\n\nThe extent of the inconsistency that has been proven is the overbreadth of s. 117 in relation to three categories of conduct: (1) humanitarian aid to undocumented entrants, (2) mutual aid amongst asylum-seekers, and (3) assistance to family entering without the required documents.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-15648-38", + "doc_type": "caselaw", + "act_code": "2015 SCC 59", + "act_short": "Appulonappa", + "act_name": "R. v. Appulonappa", + "section": "", + "citation": "R. v. Appulonappa, 2015 SCC 59", + "marginal_note": "paras 85–86", + "heading": "The human smuggling offence in IRPA s. 117; constitutional overbreadth and humanitarian aid to asylum seekers", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellants ask the Court to strike s. 117 down in its entirety. Section 117, as it was at the time of the alleged offences, has been replaced. In the particular circumstances of this case, I conclude that the preferable remedy is to read down s. 117 as not applicable to persons who give humanitarian, mutual or family assistance. This remedy reconciles the former s. 117 with the requirements of the Charter while leaving the prohibition on human smuggling for the relevant period in place. This remedy is consistent with the guidance this Court gave in Schachter v. Canada, [1992] 2 S.C.R. 679. VII. Conclusion\n\nI would allow the appeals and read down s. 117 of the IRPA , as it was at the time of the alleged offences, as not applying to persons providing humanitarian aid to asylum-seekers or to asylum-seekers who provide each other mutual aid (including aid to family members), to bring it in conformity with the Charter . The charges are remitted for trial on this basis.", + "current_to": "2015-11-27", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 754", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" + }, + { + "id": "scc-14419-1", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 1–3", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The issue in this case is whether Luis Alberto Hernandez Febles is ineligible for refugee protection because of crimes committed before he came to Canada. Mr. Febles was admitted to the United States as a refugee from Cuba. While living in the United States, he was convicted and served time in prison for two assaults with a deadly weapon — in the first case, he struck a roommate on the head with a hammer, and in the second, he threatened to kill a roommate’s girlfriend at knifepoint. The U.S. revoked his refugee status and issued a removal warrant, which is still outstanding.\n\nAfter his refugee status in the U.S. was revoked, Mr. Febles fled to Canada, entering illegally. He now claims refugee protection in Canada. The question is whether Article 1F(b) (the “serious criminality” exclusion) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”), incorporated in Canada by s. 98 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), bars him from refugee protection because of the crimes he committed in the past.\n\nEssentially, different interpretations of Article 1F(b) of the Refugee Convention are in contention. The Minister of Citizenship and Immigration (“Minister”) says that the Article 1F(b) serious criminality exclusion is triggered whenever the refugee claimant has committed a serious non-political crime before coming to Canada. It is not confined to fugitives from justice. Nor are post-crime events, like rehabilitation or expiation, relevant, in the Minister’s view. The only question is whether the claimant committed a serious non-political crime before seeking refugee protection in Canada.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-2", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 4–6", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Febles and the United Nations High Commissioner for Refugees (“UNHCR”) advocate narrower interpretations of Article 1F(b). Mr. Febles argues that the exclusion in Article 1F(b) is confined to fugitives from justice (which Mr. Febles, having served his sentences, is not). The UNHCR (with whom Mr. Febles agrees) argues that the question is whether the refugee claimant is “deserving” of refugee protection at the time of the application, which requires consideration not only of the seriousness of the offence itself, but of how long ago the offence was committed, the conduct of the claimant since the commission of the offence, whether the claimant has expressed regret or renounced criminal activities, and whether the claimant poses a threat to the security of Canada at the present time.\n\nIn a nutshell, the Minister says that serious criminality under Article 1F(b) is simply a matter of looking at the seriousness of the crime when it was committed, while Mr. Febles and the UNHCR say it requires consideration of other matters — whether the claimant is a fugitive and/or his current situation, including rehabilitation, expiation and current dangerousness.\n\nFor the reasons that follow, I agree with the conclusion of the Immigration and Refugee Board (“Board”), upheld in the courts below, that only factors related to the commission of the criminal offences can be considered, and whether those offences were serious within the meaning of Article 1F(b). On this interpretation of Article 1F(b), Mr. Febles does not qualify for refugee protection because of the serious crimes he committed in the U.S. before seeking admission to Canada as a refugee. II. The Statutory Scheme", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-3", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 7–9", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Refugee protection claims in Canada are adjudicated by the Board under the IRPA . Three procedures under the IRPA are relevant to the present appeal.\n\nThe first procedure (ss. 100 to 102 of the IRPA ) determines whether a claim for refugee protection is eligible for referral to the Board. At the time of Mr. Febles’ application, ss. 101(1)(f) and 101(2)(b) provided that a claim was ineligible to be referred to the Board if the claimant had been convicted of an offence outside Canada, where the same offence in Canada is punishable by a maximum term of imprisonment of at least ten years, and the claimant represented a danger to the public in the Minister’s opinion. This procedure did not bar Mr. Febles’ claim for refugee protection because the Minister did not file an opinion of dangerousness.\n\nThe second procedure (ss. 95 to 98 of the IRPA ) determines whether a claimant is entitled to refugee protection. Section 98 — the provision at issue here — requires the Board to reject a refugee protection claim by any person referred to in Articles 1E or 1F of the Refugee Convention. Article 1F(b) of the Refugee Convention provides that a person with respect to whom there are serious reasons for considering that “he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee” is excluded from the protection of the Refugee Convention. Interpretation of the meaning of that article is the primary issue in this case.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-4", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 10–11", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, even where a refugee protection claim is rejected by application of s. 98 and a removal order is issued, a claimant may still apply to the Minister for protection against a removal order. In determining whether to stay the removal order, the Minister must balance any danger to the public in Canada against the risk that a claimant would face death, torture or cruel and unusual treatment or punishment if removed from Canada to the place designated in the removal order (ss. 97 , 112 , 113 (d)(i) and 114(1) (b) of the IRPA ). III. Analysis A. Interpretation of a Canadian Statute That Incorporates an International Treaty\n\nParliament has incorporated Articles 1E and 1F of the Refugee Convention into s. 98 of the IRPA . Interpretation of an international treaty that has been directly incorporated into Canadian law is governed by Articles 31 and 32 of the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (“Vienna Convention”): Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paras. 51-52; Thomson v. Thomson, [1994] 3 S.C.R. 551, at pp. 577-78. It follows that the meaning of the incorporated Articles of the Refugee Convention must be determined in accordance with the Vienna Convention.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-5", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 12", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Articles 31 and 32 of the Vienna Convention set out the principles of treaty interpretation which are similar to general principles of statutory interpretation: Article 31. General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-6", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 12–14", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable. B. The Scope of Article 1F(b) of the Refugee Convention\n\nArticle 1F(b) excludes any person from refugee protection “with respect to whom there are serious reasons for considering that . . . he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”.\n\nDespite its facial clarity, the meaning of the phrase “has committed a serious non-political crime” is the subject of debate by courts and academic writers. While there are many variations of these debates, the main issue in the present case is whether “has committed a serious . . . crime” is confined to matters relating to the crime committed, or should be read as also referring to matters or events after the commission of the crime, such as whether the claimant is a fugitive from justice or is unmeritorious or dangerous at the time of the application for refugee protection. If Article 1F(b) is read as including consideration of matters occurring after the commission of the crime, people who have committed a serious crime in the past may nevertheless qualify as refugees because they have served their sentence or because of redeeming conduct subsequent to the crime.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-7", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 15–16", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Article 31(1) of the Vienna Convention states how interpretation of the Refugee Convention should be approached — by considering: (1) the “ordinary meaning” of its terms; (2) the context; and (3) the object and purpose of the Refugee Convention. For the reasons that follow, these considerations, as well as the Collected Travaux Préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees (1989), vol. III (“Travaux préparatoires”) and the jurisprudence, lead me to conclude that the phrase “has committed a serious . . . crime” refers to the crime at the time it was committed. Article 1F(b), in excluding from refugee protection people who have committed serious crimes in the past, does not exempt from this exclusion persons who are not fugitives from justice, or because of their rehabilitation, expiation or non-dangerousness at the time they claim refugee protection. (1) The Ordinary Meaning of Article 1F(b)\n\nThe point of departure for interpreting a provision of a treaty is the plain meaning of the text. As the House of Lords put it in Januzi v. Secretary of State for the Home Department, [2006] UKHL 5, [2006] 2 A.C. 426, at para. 4: “. . . the starting point of the construction exercise must be the text of the Convention itself . . ., because it expresses what the parties to it have agreed. The parties to an international convention are not to be treated as having agreed something they did not agree, unless it is clear by necessary implication from the text . . .”.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-8", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 17–19", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The ordinary meaning of the terms used in Article 1F(b) — “has committed a serious . . . crime outside the country of refuge prior to his admission to that country” — refers only to the crime at the time it was committed. The words do not refer to anything subsequent to the commission of the crime. There is nothing in the text of the provision suggesting that it only applies to fugitives, or that factors such as current lack of dangerousness or post-crime expiation or rehabilitation are to be considered or balanced against the seriousness of the crime.\n\nThe mandatory wording of the Article (“shall not apply”) chosen by the parties to the Refugee Convention unequivocally supports the view that all a subscribing country can consider in determining whether a claimant is excluded under Article 1F(b) is whether the claimant committed a serious crime outside the country of refuge prior to applying for refugee status there. Nothing in the words used suggests that the parties to the Refugee Convention intended subsequent considerations, like rehabilitation, expiation and actual dangerousness, to be taken into account. (2) The Context\n\nThe second interpretive consideration is the context. The immediate context of Article 1F(b) is Article 1F as a whole. Article 1F is comprised of three provisions, each of which excludes certain classes of persons from the Refugee Convention’s protection. Article 1F(a) excludes anyone who has “committed a crime against peace, a war crime, or a crime against humanity”. Article 1F(c) excludes anyone “guilty of acts contrary to the purposes and principles of the United Nations”.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-9", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 20–21", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Febles argues that this context suggests that Article 1F(b) is limited to fugitives. He appears to concede that Articles 1F(a) and 1F(c) are not themselves limited to fugitives, and that they operate to exclude all persons who have committed the acts listed in those provisions. Nevertheless, he argues that limiting Article 1F(b) to fugitives would not be incongruous. He submits that, unlike Article 1F(b), Articles 1F(a) and 1F(c) are designed to prevent people who are themselves persecutors from seeking protection from persecution, and that it would undermine the Refugee Convention’s viability if persecutors who create refugees could seek refugee protection. Persons who have committed serious crimes under Article 1F(b) are in a different situation, Mr. Febles argues. It would not undermine the Refugee Convention’s viability to allow non-fugitives who have already served sentences for standard crimes to seek refugee protection. On this basis, he invites this Court to confine Article 1F(b) to fugitives from justice.\n\nAgainst this, the Minister argues that the word “committed” should be given the same meaning in Articles 1F(a) and 1F(b): these provisions apply to anyone who has ever committed the offences, not only to fugitives or some other subset of those persons who have in fact committed the described offences.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-10", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 22–23", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "I agree. I cannot accept Mr. Febles’ argument that Articles 1F(a) and 1F(c) support the view that the exclusion from refugee protection under Article 1F(b) is confined to fugitives. There is nothing in the wording of these provisions or in the jurisprudence to support this contention. (See Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, at paras. 38 and 101, and Pushpanathan, at paras. 65-66 and 70 where the scope of these articles is discussed.) While Article 1F(c) uses the word “guilty”, Articles 1F(a) and 1F(b) both use the word “committed”.\n\nThe immediate context therefore supports the Minister’s interpretation. It would be anomalous if the word “committed” were ascribed different meanings in Articles 1F(a) and 1F(b) and the use of consistent language in these two articles was meant to evince an intention on the part of the drafters that they be applied inconsistently. As nobody has suggested that Article 1F(a) is confined to fugitives, it follows that Article 1F(b) would similarly not be restricted to fugitives.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-11", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 24–25", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Febles also says that Article 33(2) of the Refugee Convention supports the view that Article 1F(b) is confined to fugitives. Article 33(2) allows a host country to expel a refugee who has been “convicted by a final judgment of a particularly serious crime” and “constitutes a danger to the community of that country”. As far as Refugee Convention provisions go, Article 1F(b) only applies to crimes committed outside the country of refuge, whereas a refugee who commits a crime in the country of refuge can only be expelled under Article 33(2). Mr. Febles argues that this results in an absurdity. Why should someone who has served his sentence for a crime committed outside the country of refuge be automatically disentitled to refugee protection, when someone who commits a serious crime inside the country of refuge is allowed to retain refugee protection absent a danger to the public? This apparent absurdity disappears, Mr. Febles says, if Article 1F(b) is read as being restricted to fugitives.\n\nAgain, the argument fails to persuade. Article 33(2) is an exception to the Article 33(1) principle of non-refoulement of persons whose need for protection has been recognized (or not yet adjudicated). That is why the drafters used different language in Article 33(2) than they did in Article 1F(b): Article 33(2) allows persons to nevertheless be removed in the exceptional circumstances it describes, including in the event of particularly serious crimes, and “danger to the community”.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-12", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 26–27", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "That the Refugee Convention drafters intended that persons who commit crimes in the country of refuge be treated differently than those who commit crimes outside the country of refuge prior to claiming refugee protection makes sense. When a person commits a crime inside the country of refuge, the country of refuge is called to rely on its own sovereign legal system, rather than on an international treaty. In Canada’s case, it has done so by enacting a parallel and virtually identical provision regarding the effect of commission of a crime: s. 101(2) (a) of the IRPA specifies that a refugee protection claim cannot be made in the event “of a conviction in Canada [where] the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years”. Therefore, the discrepancy and resultant absurdity contended by Mr. Febles do not exist. In any event, different concerns arise when a country is asked to take in claimants who have committed crimes abroad, and the context provided by Article 33(2) of the Refugee Convention does not aid in the interpretive task at hand. (3) The Object and Purpose of the Refugee Convention (a) The Refugee Convention as a Whole\n\nThe purposes of the Refugee Convention include the international community’s “profound concern for refugees” and commitment to “assure refugees the widest possible exercise of . . . fundamental rights and freedoms”: see Ezokola, at para. 32, and Pushpanathan, at para. 57. While Article 1F(b) has a more specific exclusionary purpose, that purpose must be consistent with the broader protective aims of the Refugee Convention.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-13", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 28–30", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Febles argues that broad construction of exclusion provisions risks subverting the Refugee Convention’s humanitarian aims — courts should accordingly construe exclusion provisions as narrowly as is possible while still preserving the viability of the Refugee Convention.\n\nThe problem with this approach is that it risks upsetting the balance between humane treatment of victims of oppression and the other interests of signatory countries, which they did not renounce simply by together making certain provisions to aid victims of oppression. The Refugee Convention is not itself an abstract principle, but an agreement among sovereign states in certain specified terms, negotiated by them in consideration of the entirety of their interests. In R. (European Roma Rights Centre) v. Immigration Officer at Prague Airport, [2004] UKHL 55, [2005] 2 A.C. 1, the U.K. House of Lords stated that the Refugee Convention “represent[s] a compromise between competing interests, in this case between the need to ensure humane treatment of the victims of oppression on the one hand and the wish of sovereign states to maintain control over those seeking entry to their territory on the other” (para. 15).\n\nI agree with this statement of the Refugee Convention’s twin purposes. While exclusion clauses should not be enlarged in a manner inconsistent with the Refugee Convention’s broad humanitarian aims, neither should overly narrow interpretations be adopted which ignore the contracting states’ need to control who enters their territory. Nor do a treaty’s broad purposes alter the fact that the purpose of an exclusion clause is to exclude. In short, broad purposes do not invite interpretations of exclusion clauses unsupported by the text.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-14", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 31–33", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "For these reasons, I conclude that consideration of the purposes of the Refugee Convention as a whole do not support Mr. Febles’ argument that Article 1F(b) is confined to fugitives. (b) Article 1F(b)\n\nThis brings me to the purpose of Article 1F(b) itself. Mr. Febles argues that the main rationale for Article 1F(b) is the exclusion of fugitives (although he allows for the possibility that Article 1F(b) may apply to non-fugitives in certain rare circumstances where the crimes at issue are especially heinous and contribute to the creation of refugees). It follows, he says, that since Article 1F(b) is directed at preventing fugitives from evading justice, it should generally have no application to persons who have already served their sentences for prior crimes. Mr. Febles relies on obiter dicta of this Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, and Pushpanathan that Article 1F(b) is directed at the exclusion of fugitives.\n\nThe Minister counters that the main rationale for Article 1F(b) is the exclusion of serious criminals because persons who have committed serious offences are by definition undeserving of refugee protection, supported by a secondary rationale of protection of the host society. By the Minister’s interpretation, determination of a crime’s seriousness requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction, but does not include post-offence considerations. A person who commits a serious non-political crime is forever barred from claiming refugee protection. This interpretation was adopted by the courts below, and was recently endorsed by the European Court of Justice.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-15", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 34", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The UNHCR argues that Article 1F(b) has two purposes — exclusion of fugitives and exclusion of claimants undeserving of refugee protection at the time it is claimed. If a person has committed a crime within the scope of Article 1F(b), but has since served a sentence commensurate with that criminal conduct or has been otherwise rehabilitated, the decision maker on the refugee application must in each case determine whether such a person is deserving of refugee protection at that time, having regard to: the passage of time since the commission of the offence; the seriousness of the offence (and whether it can be characterized as “truly heinous”); the age at which the person committed the crime; the conduct of the individual since then; whether the individual has expressed regret or renounced criminal activities; and whether the individual poses a threat to the community or security of the receiving state. Justice Abella similarly suggests that for all but “very” serious crimes, expiation and rehabilitation must be considered (para. 74).", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-16", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 35", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "I cannot accept the arguments of Mr. Febles and the UNHCR on the purposes of Article 1F(b). I conclude that Article 1F(b) serves one main purpose — to exclude persons who have committed a serious crime. This exclusion is central to the balance the Refugee Convention strikes between helping victims of oppression by allowing them to start new lives in other countries and protecting the interests of receiving countries. Article 1F(b) is not directed solely at fugitives and neither is it directed solely at some subset of serious criminals who are undeserving at the time of the refugee application. Rather, in excluding all claimants who have committed serious non-political crimes, Article 1F(b) expresses the contracting states’ agreement that such persons by definition would be undeserving of refugee protection by reason of their serious criminality.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-17", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 36–37", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Excluding people who have committed serious crimes may support a number of subsidiary rationales — it may prevent people fleeing from justice; it may prevent dangerous and particularly undeserving people from entering the host country. However, Article 1F(b) cannot be confined to any of these subsidiary purposes. Excluding people who have committed crimes in other countries prior to seeking refugee protection may serve other state interests. It may help preserve the integrity and legitimacy of the refugee protection system, and, hence, the necessary public support for its viability. It may deter states from exporting criminals by pardoning them or imposing disproportionately lenient sentences while supporting their departure elsewhere as refugees. Finally, it may allow states to reduce the danger to their society from all serious criminality cases taken together, given the difficult task and potential for error when attempting to determine whether criminals from abroad (on whom they have more limited sources of information than on domestic criminals) are no longer dangerous. Whatever rationales for Article 1F(b) may or may not exist, its purpose is clear in excluding persons from protection who previously committed serious crimes abroad. (4) The Travaux Préparatoires\n\nBesides the arguments already addressed, Mr. Febles argues that the Travaux préparatoires to the Refugee Convention (the working documents preceding the Refugee Convention’s adoption) support his view that Article 1F(b) is confined to fugitives. Acknowledging that the Travaux préparatoires “do not provide any ‘hard answers’”, he nonetheless says that they generally support this inference.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-18", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 38–40", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "As discussed, Article 31(1) of the Vienna Convention provides for interpretation of treaty provisions in accordance with the ordinary meaning of the terms in their context and in light of the treaty’s object and purpose. Article 32 only allows for recourse to “supplementary means of interpretation” — including the Travaux préparatoires — in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable.\n\nThese conditions for use of the Travaux préparatoires are not present in this case. With great respect to Justice Abella’s contrary view, the meaning of Article 1F(b) is clear, and admits of no ambiguity, obscurity or absurd or unreasonable result. Therefore, the Travaux préparatoires should not be considered.\n\nIn any event, the Travaux préparatoires support the Minister’s interpretation rather than Mr. Febles’ reading of Article 1F(b). In the case B (Area of Freedom, Security and Justice) (2008), BVerwG 10 C 48.07, OVG 8 A 2632/06.A, both the German Federal Administrative Court and the European Court of Justice, Bundesrepublik Deutschland v. B., [2010] EUECJ C-57/09, reviewed the Travaux préparatoires and concluded that the aim of the drafters was to protect the dignity of refugee status by excluding serious criminals from such status. The Court of Appeal in this case similarly concluded that “it is clear from the Travaux Préparatoires that the drafters did not intend to limit the exclusion provision to fugitives from justice” (2012 FCA 324, 442 N.R. 290, at para. 62).", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-19", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 41–43", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Febles points to statements made by certain delegates that he says support his interpretation when taken in context, but on a review of the Travaux préparatoires as a whole, no concluded intention to that effect emerges. Indeed, the French delegate stressed the need to distinguish between bona fide refugees and non-political criminals, and added that “refugees whose actions might bring discredit on that status” should be excluded (Travaux préparatoires, U.N. Doc. A/CONF.2/SR.29, at p. 19).\n\nAccordingly, I conclude that the Travaux préparatoires do not assist Mr. Febles’ position. (5) The Case Law on Article 1F(b)\n\nCourts around the world have suggested various rationales for the inclusion of Article 1F(b) in the Refugee Convention and have interpreted the provision in different ways. While the jurisprudence is inconclusive as to the precise scope and all of the rationales, there is agreement that Article 1F(b) is not limited to fugitives. After reviewing the foreign jurisprudence, I conclude that the interpretation adopted by the German Federal Administrative Court and the European Court of Justice, that Article 1F(b) excludes anyone who has previously committed a serious non-political crime, is the most consistent with both the prevailing trend in the case law and the text of the provision.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-20", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 44–45", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "I will first consider this Court’s obiter dicta in Ward and Pushpanathan to the extent that these are read as suggesting that Article 1F(b) is confined to fugitives. I will then review the international and Federal Court jurisprudence. A review of the jurisprudence demonstrates the difficulty of confining Article 1F(b) to a narrow category of people, like fugitives from justice, and confirms that it applies, as its words suggest, to anyone who has ever committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.\n\nIn Ward, the Court was concerned with what the meaning is of “membership in a particular social group or political opinion”, corresponding to the terms of Article 1A(2) of the Refugee Convention. In obiter, La Forest J. made this brief comment regarding Article 1F(b): Hathaway would appear to confine paragraph (b) to accused persons who are fugitives from prosecution. The interpretation of this amendment was not argued before us. I note, however, that Professor Hathaway’s interpretation seems to be consistent with the views expressed in the Travaux préparatoires, regarding the need for congruence between the Convention and extradition law . . . . [p. 743]", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-21", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 46", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The most that can be said of this comment is that La Forest J., noting that the issue had not been argued, tentatively accepted the view of Professor Hathaway that Article 1F(b) was confined to fugitives, on the basis that it seemed to be consistent with certain statements found in the Travaux préparatoires. As noted earlier in these reasons, the Travaux préparatoires should not be relied on in interpreting Article 1F(b). Nor, looking at them in their totality, beyond the particular comments referred to by La Forest J. with respect to extradition law, do the Travaux préparatoires support the view that Article 1F(b) is confined to fugitives. Earlier in his Ward reasons, La Forest J. explicitly recognized the rationale of a concern to keep out criminal claimants, and the fact that Canada had amended its legislation to better serve that purpose: In the amended Immigration Act, R.S.C., 1985, c. I-2, Parliament has further responded to the concern of keeping out dangerous and criminal claimants by excluding from the definition of “Convention refugee” in s. 2 of the Act any person to whom the Convention does not apply pursuant to section E or F of Art. 1 . . . . [p. 742]", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-22", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 47–48", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Pushpanathan, this Court was concerned not with Article 1F(b), but with Article 1F(c), which excludes from protection those guilty of crimes contrary to the purposes and principles of the United Nations. Bastarache J., discussing the potential for overlap between Articles 1F(b) and 1F(c), suggested in obiter that Article 1F(b) was limited to “ordinary criminals extraditable by treaty” (para. 73). Bastarache J. gave no reasons for interpreting the clause as limited to extraditable fugitives, and the only authority cited at that section of the reasons is Professor G. S. Goodwin-Gill’s The Refugee in International Law (2nd ed. 1996). Under the heading The drafting history of article 1F(b), Goodwin-Gill’s text contains a phrase identical to that used by Bastarache J.: “The IRO Constitution excluded refugees who were ‘ordinary criminals . . . extraditable by treaty’” (p. 101 (emphasis added)).\n\nIt may therefore bear note that the more recent version of Professor Goodwin-Gill and J. McAdam’s text (The Refugee in International Law (3rd ed. 2007)), under the title The relation to extradition, observes as follows: . . . the “fugitives from justice” thesis appears to be on the wain, as being inconsistent with the ordinary meaning of the words. It is one thing to say that those seeking to escape prosecution for serious non-political crimes should not be recognized as refugees; but quite another to say that only such fugitives come within the scope of article 1F(b). [Emphasis in original; p. 175.]", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-23", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 49–51", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The restrictive views contained in the passing comments regarding Article 1F(b) made in obiter dicta in Ward and Pushpanathan find little support in the international case law. Recent jurisprudence out of the United Kingdom, Australia, New Zealand, and the European Union rejects the view that the purpose of Article 1F(b) is confined to exclusion of fugitives.\n\nIn T. v. Secretary of State for the Home Department, [1996] 2 All E.R. 865, the U.K. House of Lords discussed the purpose of Article 1F generally and indicated that the purpose of Article 1F(b) was not limited to exclusion of fugitives. Rather, Article 1F(b) recognizes that there are those “whose criminal habits ma[ke] it unreasonable for them to be forced on to a host nation against its will” (p. 875). More recently, the U.K. Upper Tribunal (Immigration and Asylum Chamber) confirmed that Article 1F(b) is not confined to fugitives in AH (Algeria) v. Secretary of State for the Home Department, [2013] UKUT 00382 (IAC) (para. 97).\n\nSimilar reasoning has been adopted in Australia. In Dhayakpa v. Minister of Immigration and Ethnic Affairs (1995), 62 F.C.R. 556, French J. of the Australian Federal Court stated that “[t]he exemption in Article 1F(b) . . . is protective of the order and safety of the receiving State” (para. 29). Dhayakpa was subsequently affirmed in Ovcharuk v. Minister for Immigration and Multicultural Affairs (1998), 88 F.C.R. 173, where the Australian Federal Court specifically declined to follow this Court’s dicta in Ward and Pushpanathan that Article 1F(b) applied only to fugitives (pp. 6 and 13).", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-24", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 52–53", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The leading Australian case is Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, 209 C.L.R. 533. Kirby J. made an extensive survey of the applicable principles of international law, and the context, object and purposes of the Refugee Convention. While he acknowledged the Refugee Convention’s humanitarian objectives and the “heavy burdens” it imposes on the contracting states (para. 94), he also found that the Refugee Convention represented a compromise between competing purposes: . . . countries of refuge are usually entitled to ensure the integrity of their own communities. In the case of serious crimes, such countries are normally entitled to exclude persons convicted of, or suspected of complicity in, such crimes. This is because such involvement may indicate, to some degree at least, the possibility of future risk to the community of the country of refuge. Without such entitlement in defined extreme cases, there would be a risk that the protective objectives of the Convention might be undermined by strong popular and political resentment. [Footnote omitted; para. 95.]\n\nIn Attorney-General (Minister of Immigration) v. Tamil X, [2010] NZSC 107, [2011] 1 N.Z.L.R. 721, the Supreme Court of New Zealand stated that two purposes underlie Article 1F(b): (1) to prevent fugitives from avoiding punishment for their crimes; and (2) to protect the security of states. The court made clear that the language of Article 1F(b) “cannot . . . be read as confining exclusion to those who are fugitives from justice” (para. 82).", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-25", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 54", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In B (Area of Freedom, Security and Justice), both the German Federal Administrative Court and the European Court of Justice held that current dangerousness is not relevant to the application of Article 1F(b). While the claimants in B (Area of Freedom, Security and Justice) were fugitives, both courts went on to discuss the general purpose and scope of both Articles 1F(b) and 1F(c) and suggested that the exclusions apply to anyone who has ever committed the acts referenced in those provisions. After examining the Travaux préparatoires of the Refugee Convention, the German Federal Administrative Court held that the dominant purpose of Article 1F(b) is to “protect refugee status from abuse, by keeping it from being granted to undeserving applicants” and to “prevent refugee status from being discredited by including criminals in the group of recognised refugees” (paras. 29-30). The European Court of Justice stated that Article 1F(b) operates as “a penalty for acts committed in the past” (para. 103) and was “introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails” (para. 104). In other words, Article 1F(b) is aimed at excluding from refugee status persons who have committed a serious crime, regardless of what may have happened since.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-26", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 55–57", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "I cannot agree with Justice Abella when she says that B (Area of Freedom, Security and Justice) “said nothing about whether — or the extent to which — Article 1F(b) deals with non-fugitives” (para. 120). To the contrary, the European Court of Justice, at paras. 100-105, made it clear that Articles 1F(b) and 1F(c) operate in the same way: to preserve the dignity of refugee status by excluding anyone who has ever committed the acts listed in those provisions. Indeed, even the appellant properly concedes that “a number of the propositions [in the European Court’s reasoning] seem to suggest that the Article [1F(b)] applies without limit” (A.F., at para. 78).\n\nTwo courts, however, have taken a narrow view of Article 1F(b). In Belgium, the Conseil du contentieux des étrangers has held that factors such as expiation, remorse, or even subsequent acts of charity are relevant to whether a claimant is deserving of refugee protection in a given case (see X v. Commissaire général aux réfugiés et aux apatrides, No. 27.479, May 18, 2009, and X v. Commissaire général aux réfugiés et aux apatrides, No. 69656, November 8, 2011).\n\nAnd in France, the Conseil d’État has stated that, while protection of the host society is, besides exclusion of fugitives, a rationale for Article 1F(b), a claimant who has served his sentence for a serious crime should not be excluded unless it is found, on the basis of something more than the fact that an Article 1F(b) crime was committed, that he would represent a danger to the public (Office français de protection des réfugiés et apatrides v. Hykaj, No. 320910, May 4, 2011).", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-27", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 58–61", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Federal Court of Appeal, confronted with this array of jurisprudence, has inclined to the view of the High Court of Australia and the European Court of Justice in a series of cases that includes Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R. 164, and the decision under appeal. The Federal Court of Appeal has not followed the obiter statements in Ward and Pushpanathan and has held that sentence completion does not “allow [a claimant] to avoid the application of Article 1F(b)” (Jayasekara, at para. 57).\n\nI conclude that the dominant tide of the jurisprudence is inconsistent with the conclusion that Article 1F(b) operates so as to exclude only fugitives, as well as with the proposition that post-crime conduct must be balanced against the crime’s seriousness. Of particular note, none of the international courts accept the dicta in Ward and Pushpanathan that exclusion of fugitives is the only rationale for Article 1F(b). In my view, the Ward and Pushpanathan obiter statements should no longer be followed. (6) Conclusion on the Scope of Article 1F(b)\n\nArticle 1F(b) excludes anyone who has ever committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. Its application is not limited to fugitives, and neither is the seriousness of the crime to be balanced against factors extraneous to the crime such as present or future danger to the host society or post-crime rehabilitation or expiation. C. How Should a Crime’s Seriousness Be Assessed?\n\nThe appellant concedes that his crimes were “serious” when they were committed, obviating the need to discuss what constitutes a “serious . . . crime” under Article 1F(b). However, a few comments on the question may be helpful.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-28", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 62", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.), and Jayasekara has taken the view that where a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada, the crime will generally be considered serious. I agree. However, this generalization should not be understood as a rigid presumption that is impossible to rebut. Where a provision of the Canadian Criminal Code, R.S.C. 1985, c. C-46, has a large sentencing range, the upper end being ten years or more and the lower end being quite low, a claimant whose crime would fall at the less serious end of the range in Canada should not be presumptively excluded. Article 1F(b) is designed to exclude only those whose crimes are serious. The UNHCR has suggested that a presumption of serious crime might be raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery (Goodwin-Gill, at p. 179). These are good examples of crimes that are sufficiently serious to presumptively warrant exclusion from refugee protection. However, as indicated, the presumption may be rebutted in a particular case. While consideration of whether a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada is a useful guideline, and crimes attracting a maximum sentence of ten years or more in Canada will generally be sufficiently serious to warrant exclusion, the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner. D. The Domestic Statutory Context and the Canadian Charter of Rights and Freedoms", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-29", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 63–66", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Febles’ final argument is that his suggested interpretation of Article 1F(b) should be adopted because it creates harmony within the IRPA and ensures consistency with the Charter . This argument conflates two different interpretive exercises.\n\nAs discussed, Article 1F(b) of the Refugee Convention is part of an international treaty, the meaning of which is not affected by provisions of the IRPA . However, the Board is bound by the IRPA , and not by the Refugee Convention itself. Parliament has the power to pass legislation that complies with Canada’s obligations under the Refugee Convention, or to pass legislation that either exceeds or falls short of the Refugee Convention’s protections. In this case, therefore, there are two separate inquiries. First, what does Article 1F(b) of the Refugee Convention mean? For this first inquiry, the statutory scheme and the Charter are not relevant. Second, what does s. 98 of the IRPA mean? For this second inquiry, the domestic statutory context and the Charter are potentially relevant.\n\nI earlier concluded that Article 1F(b) of the Refugee Convention applies to anyone who has ever committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.\n\nSection 98 of the IRPA expressly incorporates Article 1F(b) of the Refugee Convention, stating: “A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.” As such, it is clear that Parliament’s intent was for s. 98 to exclude from refugee protection in Canada all persons falling under Article 1F(b) of the Refugee Convention. There is nothing in the scheme of the IRPA as a whole that indicates a contrary intention.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-30", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 67–68", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "There is similarly no role to play for the Charter in interpreting s. 98 of the IRPA . Where Parliament’s intent for a statutory provision is clear and there is no ambiguity, the Charter cannot be used as an interpretive tool to give the legislation a meaning which Parliament did not intend: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 61-62. Moreover, as the Court of Appeal held, s. 98 of the IRPA is consistent with the Charter . As stated at para. 10 of these reasons, even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place (ss. 97 , 112 , 113 (d)(i) and 114(1) (b) of the IRPA ). On such an application, the Minister would be required to balance the risks faced by the appellant if removed against the danger the appellant would present to the Canadian public if not removed (s. 113 (d) of the IRPA ). Section 7 of the Charter may also prevent the Minister from issuing a removal order to a country where Charter-protected rights may be in jeopardy: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 58.\n\nWhile the appellant would prefer to be granted refugee protection than have to apply for a stay of removal, the Charter does not give a positive right to refugee protection. The appellant is excluded from refugee protection as a result of his commission of serious non-political crimes. If removal of the appellant to Cuba jeopardizes his Charter rights, his recourse is to seek a stay of removal, as discussed earlier.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-31", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 69–72", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Alternatively, if the appellant believes that the refugee status he was previously granted by the United States was improperly stripped by U.S. authorities under 8 U.S.C. § 1158(c)(2)(B) and § 1158(c)(3), he must challenge this in the justice system of the United States. The Canadian justice system cannot be invoked to determine the correctness or the constitutionality of decisions made by U.S. officials pursuant to U.S. laws. IV. Disposition\n\nI would dismiss the appeal and uphold the decision of the Board denying refugee protection to the appellant. The reasons of Abella and Cromwell JJ. were delivered by\n\nAbella J. (dissenting) — In the wake of the mass persecution and displacement of persons during World War II, the international community responsively consolidated and entrenched international protection for refugees through the 1951 United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (Refugee Convention).\n\nThe Refugee Convention, as amended by a 1967 Protocol relating to the Status of Refugees, 606 U.N.T.S. 267, is today the Rosetta Stone of refugee protection under international law, setting out the definition of who is considered a refugee, the rights of refugees, and the corresponding obligations of states towards refugees in their territory. Among other humanitarian protections provided in the Refugee Convention, the prohibition against refoulement under Article 33 provides that signatory states are prohibited from forcibly expelling or returning refugees to a territory in which there is a risk of persecution.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-32", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 73–75", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "While Article 1 sets out broad parameters for those persons with a well-founded fear of persecution who will be considered refugees, the category is not open-ended. The signatories to the Refugee Convention did not want the protections flowing from refugee status to be extended to individuals whose designation as refugees would compromise the integrity and political viability of those very protections.\n\nArticle 1F sets out the grounds for excluding an individual from the status of “refugee”. The claim for refugee status in this case depends on a determination of when the commission of a serious non-political crime in accordance with Article 1F(b) will disqualify an individual from the protective scope of the Refugee Convention. With great respect, I draw a different interpretive conclusion than does the majority. While Articles 1F(a) and (c) represent absolute barriers to refugee status, the human rights approach to interpretation mandated by the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (Vienna Convention), suggests a less draconian interpretation of Article 1F(b). In my view, except in the case of very serious crimes, an individual should not automatically be disqualified from the humanitarian protection of the Refugee Convention under this provision and should be entitled to have any expiation or rehabilitation taken into account. Background\n\nThe facts underlying the criminal conduct in question in this appeal are not contested. Luis Alberto Hernandez Febles is a Cuban citizen born on December 4, 1954. He left Cuba for the United States on May 14, 1980. He was granted refugee status in the United States on the ground of fear of persecution as a political dissident.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-33", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 76–81", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Febles pleaded guilty in 1984 and 1993 to two criminal offences in California. They are the basis of this appeal.\n\nOn July 2, 1984, Mr. Febles turned himself in to the police after having struck someone on the head with a hammer while the victim was sleeping. He had consumed alcohol at the time of the offence. On November 20, 1984, Mr. Febles pleaded guilty to “assault . . . with a deadly weapon . . . other than a firearm” under the Penal Code of California (s. 245(a)(1)), and was sentenced to two years in prison and three years of probation.\n\nThe second offence occurred on October 3, 1993, when Mr. Febles uttered threats while pointing a knife at someone. Mr. Febles pleaded guilty to “assault . . . with a deadly weapon . . . other than a firearm”. He was sentenced to two years in prison and three years of probation.\n\nMr. Febles does not deny responsibility for these offences. He admitted that he had serious alcohol problems at the time, but said that he has since stopped drinking after completing an Alcoholic Anonymous course between 1998 and 2002. From 2002 to 2008, Mr. Febles was gainfully employed in the United States.\n\nMr. Febles entered Canada on October 12, 2008. Two days later, on October 14, 2008, he reported to the authorities and applied for refugee status on the ground of fear of persecution in Cuba for his political beliefs. He freely disclosed his criminal convictions to the Canadian authorities in his interview with the Canada Border Services Agency.\n\nOn the basis of the Border Services report, Mr. Febles was referred to the Immigration Division of the Immigration and Refugee Board (Board) for an inadmissibility hearing. The Immigration Division concluded that Mr. Febles was inadmissible based on having committed a serious non-political crime.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-34", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 82–86", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "A deportation order was issued on June 3, 2010.\n\nOn October 14, 2010, the Board’s Refugee Protection Division heard Mr. Febles’ claim for refugee protection. The Minister of Public Safety and Emergency Preparedness filed a notice to intervene, arguing that Mr. Febles should be excluded from the definition of refugee under Article 1F(b) of the Refugee Convention because he had committed a serious non-political crime. Mr. Febles’ position was that he had served his sentences, was now rehabilitated, and posed no danger to Canada.\n\nThe Board dismissed his claim for refugee status on October 27, 2010, concluding that the gravity of his crime in 1984 disqualified him from refugee status under Article 1F(b) of the Refugee Convention.\n\nMr. Febles’ application for judicial review was dismissed by both the Federal Court, 2011 FC 1103, 397 F.T.R. 179, and Federal Court of Appeal, 2012 FCA 324, 442 N.R. 290. For the following reasons, I would allow the appeal and remit the matter to the Board for redetermination. Analysis\n\nArticle 1F of the Refugee Convention excludes three categories of individuals from the protective scope of its provisions by limiting the definition of a “refugee”: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-35", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 87–89", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The consequences of exclusion under Article 1F are significant. If an individual becomes ineligible for the status of a “refugee” on the basis of one of those exclusionary grounds, the humanitarian protections provided in the Refugee Convention are denied altogether, including the protection from refoulement under Article 33. An excluded individual is consequently at risk of being returned to face persecution in his or her country of origin, barring the availability of any residual protection under domestic or international human rights law.\n\nParliament incorporated Article 1F into the Immigration and Refugee Protection Act , S.C. 2001, c. 27 . Section 95 of the Act states that refugee protection is conferred on an individual where the Immigration and Refugee Board “determines the person to be a Convention refugee or a person in need of protection”. Section 98 carves out an exception for persons covered by Article 1F.\n\nArticle 31 of the Vienna Convention sets out the general rule for the interpretation of international treaties such as the Refugee Convention. Article 31(1) states: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-36", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 90", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Among other interpretive methods, Article 31(3) of the Vienna Convention provides that subsequent practice among the signatory states is relevant to context in the interpretive exercise where that practice “establishes the agreement of the parties regarding its interpretation”; see also Yugraneft Corp. v. Rexx Management Corp., [2010] 1 S.C.R. 649, at para. 21. Article 32 provides that recourse may be had to the travaux préparatoires of a treaty as a supplementary means of interpretation “in order to confirm the meaning resulting from the application of article 31”, or where the application of Article 31 results in ambiguity or a result which is “manifestly absurd or unreasonable”: Peracomo Inc. v. TELUS Communications Co., [2014] 1 S.C.R. 621, at para. 100.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-37", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 91", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, Bastarache J. described the application of this interpretive approach in the context of interpreting the Refugee Convention: [The Vienna Convention rules on treaty interpretation] have been applied by this Court in two recent cases, one involving direct incorporation of treaty provisions (Thomson v. Thomson, [1994] 3 S.C.R. 551) and another involving a section of the Immigration Act intended to implement Canada’s obligations under the Convention (Ward, supra). In the latter case, La Forest J. makes use of several interpretative devices: the drafting history of, and preparatory work on the provision in question; the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (“UNHCR Handbook”), and previous judicial comment on the purpose and object of the treaty. Indeed, at p. 713, La Forest J. was willing to consider submissions of individual delegations in the travaux préparatoires, although he recognized that, depending on their content and on the context, such statements “may not go far” in supporting one interpretation over another. . . . . . . a priori denial of the fundamental protections of a treaty whose purpose is the protection of human rights is a drastic exception to the purposes of the Convention . . . and can only be justified where the protection of those rights is furthered by the exclusion. [paras. 53 and 74]", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-38", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 92–93", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In light of the human rights purposes of the Refugee Convention and the dramatic consequences of exclusion from the status of a refugee, Article 1F requires a particularly cautious interpretation: Ezokola v. Canada (Citizenship and Immigration), [2013] 2 S.C.R. 678, at paras. 31-36; Pushpanathan, at para. 57; see also Al-Sirri v. Secretary of State for the Home Department, [2012] UKSC 54, [2013] 1 A.C. 745, at paras. 12 and 16; United Nations High Commissioner for Refugees (UNHCR), “Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, HCR/GIP/03/05, September 4, 2003 (online) (UNHCR Guidelines), at para. 2.\n\nThe link between the human rights object and a cautious interpretation is highlighted in the Preamble to the Refugee Convention itself, as LeBel and Fish JJ. confirmed in Ezokola: The preamble to the Refugee Convention highlights the international community’s “profound concern for refugees” and its commitment “to assure refugees the widest possible exercise of . . . fundamental rights and freedoms”. Our approach to art. 1F(a) must reflect this “overarching and clear human rights object and purpose”. [Para. 32, citing Pushpanathan, at para. 57.]", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-39", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 94", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, La Forest J. explained how the animating human rights purposes of the Refugee Convention inform the interpretation of the elements of the definition of “Convention refugee”: Underlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows: Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates. It sets out, in a general fashion, the intention of the drafters and thereby provides an inherent limit to the cases embraced by the Convention. Hathaway . . . thus explains the impact of this general tone of the treaty on refugee law: The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard. This theme sets the boundaries for many of the elements of the definition of “Convention refugee”. [p. 733]", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-40", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 95", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "This takes us to the purpose of the exclusion clauses in Article 1F. In Pushpanathan, Bastarache J. described their underlying purpose and relationship to the Refugee Convention as follows: The rationale is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a Convention designed to protect those refugees. As La Forest J. observes in Ward, supra, at p. 733, “actions which deny human dignity in any key way” and “the sustained or systemic denial of core human rights . . . se[t] the boundaries for many of the elements of the definition of ‘Convention refugee’”. This purpose has been explicitly recognized by the Federal Court of Appeal in the context of the grounds specifically enumerated in Article 1F(a) in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, where Linden J.A. stated (at p. 445): “When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. International criminals, on all sides of the conflicts, are rightly unable to claim refugee status.” [para. 63]", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-41", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 96", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Bastarache J. rejected the suggestion that the exclusion clauses in Article 1F were intended to protect the country of refuge from dangerous refugees who are at a risk of reoffending. In his view, this interest is addressed by Article 33 of the Refugee Convention, which permits a state to expel a refugee to his or her native country if the individual is considered a danger to the receiving state (refoulement). To fold this function into Article 1F as well, in his view, would render Article 33 redundant: The purpose of Article 1 is to define who is a refugee. Article 1F then establishes categories of persons who are specifically excluded from that definition. The purpose of Article 33 of the Convention, by contrast, is not to define who is and who is not a refugee, but rather to allow for the refoulement of a bona fide refugee to his or her native country where he or she poses a danger to the security of the country of refuge, or to the safety of the community. This functional distinction is reflected in the Act, which adopts Article 1F as part of s. 2, the definitional section, and provides for the Minister’s power to deport an admitted refugee under s. 53, which generally incorporates Article 33. Thus, the general purpose of Article 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention. Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status. Although all of the acts described in Article 1F could presumably fall within the grounds for refoulement described in Article 33, the two are distinct. [Emphasis added; para. 58.]", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-42", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 97", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The UNHCR Guidelines also provide guidance on the purpose of the exclusion clauses in Article 1F generally: The rationale for the exclusion clauses, which should be borne in mind when considering their application, is that certain acts are so grave as to render their perpetrators undeserving of international protection as refugees. Their primary purpose is to deprive those guilty of heinous acts, and serious common crimes, of international refugee protection and to ensure that such persons do not abuse the institution of asylum in order to avoid being held legally accountable for their acts. The exclusion clauses must be applied “scrupulously” to protect the integrity of the institution of asylum, as is recognised by UNHCR’s Executive Committee in Conclusion No. 82 (XLVIII), 1997. At the same time, given the possible serious consequences of exclusion, it is important to apply them with great caution and only after a full assessment of the individual circumstances of the case. The exclusion clauses should, therefore, always be interpreted in a restrictive manner. [Emphasis added; para. 2.]", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-43", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 98–100", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Broadly speaking, then, Article 1F operates to maintain the integrity of the system of international refugee protection and the status of being a “refugee”. The parties to the Refugee Convention recognized this important function in their 2001 Declaration of States Parties to the 1951 Convention and or its 1967 Protocol Relating to the Status of Refugees, HCR/MMSP/2001/09 (Declaration of States), where the signatories reaffirmed their commitment to continue their efforts aimed at ensuring the integrity of the asylum institution, inter alia, by means of carefully applying Articles 1F and 33(2) of the 1951 Convention, in particular in light of new threats and challenges . . . . [Emphasis added; p. 3.]\n\nIn order to screen individuals who are not “bona fide refugees”, the application of Article 1F of the Refugee Convention operates to protect the integrity of the international refugee protection by excluding individuals who, as a result of having committed such “heinous acts, and serious common crimes”, are themselves considered undeserving of the status of refugee: UNHCR Guidelines, at para. 2; Pushpanathan, at para. 63; Ezokola, at para. 34.\n\nThe particular exclusion under scrutiny in this appeal is the one in Article 1F(b), which excludes individuals from the Refugee Convention where there “are serious reasons for considering that . . . he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-44", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 101–103", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "There is little doubt that the primary purpose of Article 1F(b) was to exclude those individuals who would abuse the status of a refugee by avoiding accountability through prosecution or punishment for a serious crime outside the country of refuge. For the clause to apply, the crime must have been committed “outside the country of refuge prior to his [or her] admission to that country as a refugee”. This territorial limitation has been relied on as a strong textual indication that Article 1F(b) was intended to exclude those individuals who seek to abuse the status of being a refugee by evading prosecution in another jurisdiction: James C. Hathaway and Michelle Foster, The Law of Refugee Status (2nd ed. 2014), at p. 544. Further support for this interpretation emerges from the surrounding context of Article 1F(b), the UNHCR Guidelines, at para. 2, the interpretation of Article 1F(b) adopted in other jurisdictions, and the drafting history and travaux préparatoires of the Refugee Convention. See also Pushpanathan, at para. 73; Ward, at p. 743.\n\nThere is considerable debate, however, as to the extent to which Article 1F(b) was also intended to fulfill the additional purpose of excluding individuals who, as a result of having committed and been prosecuted for serious non-political crimes in the past, are considered undeserving of refugee protection under the Refugee Convention.\n\nTo be fully understood, the text of Article 1F(b) must be situated in its surrounding context and considered in light of its drafting history.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-45", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 104–106", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Preamble of the Refugee Convention directs that the contracting parties “revise and consolidate previous international agreements” relating to the rights of refugees, and “extend the scope of and the protection accorded by such instruments by means of a new agreement”.\n\nThe “previous international agreements” referred to in the Preamble each denied refugee protection for individuals who had committed crimes in other countries prior to entering the country of refuge and had yet to be prosecuted and punished for those crimes: Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (Universal Declaration) (adopted by the U.N. General Assembly on December 10, 1948); Constitution of the International Refugee Organization, August 20, 1948, 18 U.N.T.S. 3, Ann. I, Part II (excluding “[o]rdinary criminals who are extraditable by treaty”); Statute of the Office of the United Nations High Commissioner for Refugees, G.A. Res. 428(V) of December 14, 1950, p. 7 (excluding persons who had committed a “crime covered by the provisions of treaties of extradition”).\n\nMoreover, in reaffirming their commitment to international refugee protection, the signatories declared in 2001 that the Refugee Convention is “consistent with Article 14 of the Universal Declaration of Human Rights”: Declaration of States, at para. 2. Article 14 of the Universal Declaration deals with an individual’s right of asylum from persecution: 1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-46", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 107–109", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Article 14(2) is also significant because it was central to the discussions by states’ representatives at the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons in Geneva in July 1951 (Conference of Plenipotentiaries). I agree that the import of the travaux préparatoires with respect to Article 1F(b) is not obvious. But I do not agree, with respect, that the travaux préparatoires provide no insight of significance into the issues before us. In my view, the widely divergent interpretations of Article 1F(b) adopted by courts in other jurisdictions and the uncertainty created by the territorial limits described in Article 1F(b) mandate recourse to the interpretive assistance of the preparatory work.\n\nThroughout the early stages of the drafting history, Article 14(2) of the Universal Declaration, rather than the provision which eventually became Article 1F(b), was directly incorporated in the Refugee Convention. The travaux préparatoires provide some insight into why the signatories to the Convention modified the exclusionary language of Article 14(2) and adopted instead the text which is currently found in Article 1F(b).\n\nAt the Conference of Plenipotentiaries, the representative for the United Kingdom prompted discussion by proposing that the reference to Article 14(2) should be deleted altogether. In his view, incorporating Article 14(2) was entirely unnecessary in light of the provision in the draft Refugee Convention — what eventually became Article 33(2) — which permitted signatories to “refoule” refugees who posed a danger or threat to the country of refuge.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-47", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 110", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Nonetheless, some states — particularly France and Yugoslavia — were opposed to deleting the reference to Article 14(2) from the draft. France expressed a concern that there was a need to preserve the distinction between “ordinary common-law criminals” and “bona fide refugees” with respect to whether the individual was eligible for the status of a refugee under the Refugee Convention (Conference of Plenipotentiaries, Summary Record of the Twenty-fourth Meeting (Plenipotentiaries), U.N. Doc. A/CONF.2/SR.24 (1951)). The French representative argued that signatories to the Convention should not be required to grant refugee status to an individual who had no right of asylum within the meaning of Article 14(2) since asylum “was the conditio sine qua non of the possession of [refugee] status” (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.29 (1951)).", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-48", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 111–112", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Notably, the representative from the United Kingdom confirmed that Article 14(2) “[was] intended to apply to persons who were fugitives from prosecution in another country for non-political crimes” (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.29 (1951)), and the language ought more clearly to reflect this. None of the representatives disagreed with this position. This is not surprising, given that, as in the other previous international agreements noted above, the underlying assumption was that Article 14(2) restricted refugee protection for individuals who remained criminally liable abroad: Atle Grahl-Madsen, The Status of Refugees in International Law (1966), vol. I, Refugee Character, at p. 290. The UK representative also suggested that the language of Article 14(2) be modified so as to ensure that refugees who had committed trivial or minor crimes “should not thereby be placed once and for all beyond the reach of the Convention” (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.24 (1951)).\n\nSome representatives expressed concern that the draft Refugee Convention should be coordinated with extradition law, so as to prevent a conflict between the Convention and an extradition treaty, while others were of the view that this was not a concern that needed to be expressly addressed under the Convention, but could be dealt with by way or reservations or declarations as needed.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-49", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 113–114", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Since it was apparent that the U.K.’s proposal to delete Article 14(2) was not broadly supported, the representatives turned their attention to revising its exclusionary language. France and Yugoslavia were of the view that the exclusion clause should only relate to crimes committed before entry into the territory of the receiving country. France also emphasized that the term “crime” must be distinguished from “misdemeanour”, and proposed that the clause refer only to “serious crimes” (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.29 (1951)). In describing the “vital” necessity of retaining the provision, the representative from France emphasized the need for a provision which would permit France to screen individuals at the border and grant asylum for some individuals on French territory, without having to confer on those individuals the status of a refugee (ibid.).\n\nAfter some discussion, a variation proposed by Yugoslavia was ultimately adopted,[1] and agreed to by the U.K.’s representative because while he did not regard the revised Yugoslav amendment as entirely free from objection, [he] felt that it at least removed his . . . main objection to the text . . . as originally drafted, which would have made it too easy for States to withdraw the status of refugee from many persons who had been granted asylum from persecution. [Emphasis added; ibid.] After Belgium proposed some minor modifications,[2] Article 1F(b) as it is now drafted was adopted by the representatives.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-50", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 115–116", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "This linguistic conclusion to the discussions, whose origins were to discuss whether to expand the scope of those who were entitled to refugee status notwithstanding their commission of a crime for which they evaded prosecution, argues strongly against using this expanded protection to narrow the category of those entitled to protection.\n\nThe most significant aspect of the discussions for purposes of this appeal, is that the discussions were only about refugee claimants who had committed a crime outside the country of refuge but had not been convicted or served a sentence for that crime. In this context, there was broad agreement among the representatives that only fugitives from serious non-political crimes be excluded from entitlement. The issue was never about those who had committed serious crimes and had already served their sentences outside the receiving country.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-51", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 117–118", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Turning to the interpretation adopted in other jurisdictions of Article 1F(b), it is widely accepted that the original purpose of Article 1F(b) was to deny refugee status to fugitives, namely, those individuals who had avoided prosecution for serious non-political crimes committed abroad. This was based on the premise that enabling those individuals to obtain refugee status would compromise the integrity of the international system of refugee protection. The European Court of Justice, in a decision about the interpretation of Article 12(2)(b) and (c) of the Directive 2004/83/EC of the Council of the European Union which incorporates Article 1F(b) and (c) into E.U. legislation, has recognized that one of the purposes of exclusion under those provisions is to prevent the status of being a refugee “from enabling those who have committed certain serious crimes to escape criminal liability” (Bundesrepublik Deutschland v. B., [2010] EUECJ C-57/09, at para. 104). See also Australia (SRYYY v. Minister for Immigration and Multicultural and Indigenous Affairs, [2005] FCAFC 42, 220 A.L.R. 394); New Zealand (Attorney-General (Minister of Immigration) v. Tamil X, [2010] NZSC 107, [2011] 1 N.Z.L.R. 721, at para. 82 (Tamil X)); the United Kingdom (AH (Algeria) v. Secretary of State for the Home Department, [2013] UKUT 00382 (IAC) (AH)); and France (Office français de protection des réfugiés et apatrides v. Hykaj, No. 320910, May 4, 2011).\n\nAll jurisdictions also appear to agree that there are other circumstances in which Article 1F(b) excludes individuals from the Refugee Convention, but there seems to be little agreement as to when those circumstances arise.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-52", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 119–120", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Australian courts have concluded that Article 1F(b) is additionally intended to protect the country of refuge from individuals who are considered dangerous as a result of committing past crimes (Dhayakpa v. Minister of Immigration and Ethnic Affairs (1995), 62 F.C.R. 556, at para. 29; Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, 209 C.L.R. 533, at paras. 15 and 95-96), as has New Zealand (Tamil X, at para. 82). Other jurisdictions, however, like this Court in Pushpanathan, have expressly rejected the proposition that exclusion of dangerous individuals is the underlying purpose of Article 1F(b), even if its application may incidentally have that effect in some cases.\n\nThe European Court of Justice concluded that it would be inconsistent with the purposes of exclusion “to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State” (Bundesrepublik Deutschland v. B., at para. 104). The court held that the dangerousness of the individual is not considered under Article 12(2) of the European directive (incorporating Article 1F), but under the Articles of the directive which incorporate Article 33(2) of the Refugee Convention (para. 101). Notably, this case said nothing about whether — or the extent to which — Article 1F(b) deals with non-fugitives. Nor did it conclude that it automatically excludes anyone who has ever committed a serious crime.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-53", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 121", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "And still other jurisdictions have found that rehabilitation, the seriousness of the crime, and other factors relating to the individual circumstance of the claimant are relevant. In Belgium, in a case about a refugee claimant who had committed and completed sentences for past crimes abroad, the Conseil du contentieux des étrangers concluded that Article 1F(b) applied to exclude the individual from the Refugee Convention on the basis of the individual’s lack of remorse for very grave criminal conduct (X v. Commissaire général aux réfugiés et aux apatrides, No. 69656, November 8, 2011). The Conseil du contentieux des étrangers observed that the decision to exclude the individual at issue had been reached on grounds which included an express reference to the “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees” (Background Note) (online), prepared by the UNHCR in 2003, that the completion of a sentence for a crime may be considered a relevant form of expiation, and that other factors such as the gravity of the offence and the claimant’s age and remorsefulness must also be considered. But in cases involving truly heinous crimes, exclusion under Article 1F(b) will be mandated even where the claimant has completed a sentence for a crime committed and demonstrated remorse (XXX v. État belge, No. 199.079, A. 192.074/XI-16.797, Conseil d’État (Section du contentieux administratif), December 18, 2009; X v. Commissaire général aux réfugiés et aux apatrides, No. 27.479 (Conseil du contentieux des étrangers), May 18, 2009).", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-54", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 122–123", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the United Kingdom, earlier decisions of the Immigration Appeal Tribunal took a literal approach to the words of Article 1F(b) and rejected an interpretation in which expiation (understood as “punishment, pardon, or amnesty” or “remorse or change of heart”) is relevant to determining whether past criminal conduct is a basis for exclusion under Article 1F(b): KK (Turkey) v. Secretary of State for the Home Department, [2004] UKIAT 00101, at para. 92; Secretary of State for the Home Department v. AA (Palestine), [2005] UKIAT 00104, at paras. 59-62. Instead, the Tribunal considered it should apply the words of Article 1F(b) “exactly as they are written” (KK, at para. 92).\n\nBut recently, a more generous approach has been taken to the interpretation of Article 1F “because of the serious consequences of excluding a person who has a well-founded fear of persecution from the protection of the Refugee Convention” (Al-Sirri, at paras. 12 and 16; R. (JS (Sri Lanka)) v. Secretary of State for the Home Department, [2010] UKSC 15, [2010] 3 All E.R. 881).", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-55", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "para 124", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In a recent decision involving a refugee claimant who had been convicted of and completed a sentence for a prior criminal offence, the Upper Tribunal (Immigration and Asylum Chamber) adopted a high threshold of seriousness for triggering Article 1F(b) where the individual had already completed a sentence for the crime, and left open the possibility that supervening events may be relevant to the analysis (AH). The Tribunal found that Article 1F(b) has two purposes: the “prevention of abuse of the asylum system by undermining extradition law or the mutual interest amongst states in prosecuting serious offenders”, and to exclude “those who have demonstrated by their conduct they are not worthy of it” (para. 85). In determining whether an individual is “unworthy” on the basis of past conduct, the Tribunal found: . . . that limbs 1F(a) and (c) serve to illustrate the level of seriousness required to engage Article 1F(b); the genus of seriousness is at a common level throughout. Those who commit war crimes and acts against the principles and purposes of the United Nations are clear examples of people who are unworthy of protection. [Emphasis added; para. 86.]", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-56", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 125–126", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "It also noted that the French text of Article 1F(b) provides important insight into the level of seriousness required for exclusion under that clause: The French text of Article 1F(b) refers to “un crime grave” whereas that for Article 33(2) refers to “un délit particulièrement grave”. A crime in French law is a more serious class of offence than a délit. According to Cornu’s Vocabulaire Juridique (9th edition) 2011, “crime” is a “transgression particulièrement grave”. We accept, however, that the classification of the offence in national law is not the issue (as it happens the offences of which the appellant was convicted in France were both délits). The point is rather that the focus on the use of the English word “crime” in both Articles loses the quality of seriousness reflected in the French word. It may be that the language of the French text is where the UNHCR and the commentators obtain the notion that serious crimes were once capital crimes. [para. 88]\n\nOn those facts, it was held that “personal participation in a conspiracy to promote terrorist violence can be a particularly serious crime for the purpose of Article 1F(b)” (para. 89). The Tribunal emphasized that “[w]e must search for the autonomous international meaning of the term rather than what might be purely national law concerns about what conduct should be penalised and sentencing policy” (para. 83). Seriousness is to be examined at the time the criminal acts were committed, but the Tribunal noted that events such as a pardon, or a final acquittal in the “supervening passage of time may be relevant to whether exclusion is justified” (para. 97).", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-57", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 127–128", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The UNHCR’s “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, which “forms an integral part of UNHCR’s [position]” on the interpretation of Article 1F (UNHCR Guidelines), provides guidance of particular relevance: . . . it is arguable that an individual who has served a sentence should, in general, no longer be subject to the exclusion clause as he or she is not a fugitive from justice. Each case will require individual consideration, however, bearing in mind issues such as the passage of time since the commission of the offence, the seriousness of the offence, the age at which the crime was committed, the conduct of the individual since then, and whether the individual has expressed regret or renounced criminal activities. In the case of truly heinous crimes, it may be considered that such persons are still undeserving of international refugee protection and the exclusion clauses should still apply. This is more likely to be the case for crimes under Article 1F(a) or (c), than those falling under Article 1F(b). [Emphasis added; para. 73.]\n\nTwo related observations emerge from this review. The first is that, like the international agreements relating to refugees which were consolidated and revised by the Refugee Convention, Article 1F(b) was originally intended to maintain the integrity of the status of refugee by excluding fugitives. The travaux préparatoires confirm that the exclusion of those who have committed serious and unpunished crimes was not only a practical concern; it was a moral one for the integrity of the international system of refugee protection.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-58", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 129–131", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "But as the recent international jurisprudence shows, it remains far from clear that the signatories to the Refugee Convention intended to exclude all individuals who were believed to have committed serious non-political crimes, without regard for whether they had been rehabilitated. In my view, this leaves it open to this Court to reach its own conclusion as to how to interpret the scope of 1F(b).\n\nThe requisite good faith interpretive approach mandates not divorcing the text of Article 1F(b) from its human rights purpose. This is particularly so given the clear concern at the Conference of Plenipotentiaries that the basis for exclusion under Article 1F(b) should be restrictively written so that it would not be “too easy” for states to deny the humanitarian protections guaranteed by the Refugee Convention (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.29 (1951)).\n\nThis means, as the UNHCR Guidelines state, that there is room for discretion to apply Article 1F(b) “only after a full assessment of the individual circumstances of the case” (para. 2 (emphasis added)). There is little or no authority for the proposition that everyone who has committed a serious non-political crime outside the country of refuge remains permanently undeserving of the Refugee Convention’s protection regardless of their supervening personal circumstances. Such a relentlessly exclusionary — and literal — approach would contradict both the “good faith” approach to interpretation required by the Vienna Convention as well as the Refugee Convention’s human rights purpose.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-59", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 132–133", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my view, depending on the seriousness of the crime, if an individual is believed to have committed a serious non-political crime, the purpose of Article 1F(b) can be met where the individual’s circumstances reflect a sufficient degree of rehabilitation or expiation that the claimant ought not to be disqualified from the humanitarian protection of the Refugee Convention. The completion of a sentence, along with factors such as the passage of time since the commission of the offence, the age at which the crime was committed, and the individual’s rehabilitative conduct, will all be relevant. On the other hand, individuals who have committed such serious crimes that they must be considered undeserving of the status of being a refugee would be excluded.\n\nSupport for this interpretation comes from the approach taken by the UNHCR and by foreign courts in Belgium and the United Kingdom, which have emphasized that those who have committed particularly serious crimes are excluded under the Refugee Convention on the basis that they are undeserving of the status of a refugee. This approach also accords with the intention of the signatories to the Refugee Convention to protect the integrity and viability of the international system of protection for refugees by limiting the obligations of the contracting parties towards individuals who have committed very serious crimes. Application", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-14419-60", + "doc_type": "caselaw", + "act_code": "2014 SCC 68", + "act_short": "Febles", + "act_name": "Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Febles v. Canada (Citizenship and Immigration), 2014 SCC 68", + "marginal_note": "paras 134–136", + "heading": "Exclusion from refugee protection for a serious non-political crime under Article 1F(b) of the Refugee Convention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In concluding that Mr. Febles was excluded from the Refugee Convention on the basis of Article 1F(b), the Board considered “only the crime committed in 1984, for which there is more information” and found that Mr. Febles had committed a “serious non-political crime” (para. 22). It observed that Mr. Febles had completed the sentence imposed for the offence committed in 1984, and that “it might appear unfair to the claimant that, although he served his sentence and took the second chance that life was offering him 17 years ago and chose to follow a straighter path, the crimes he committed many years ago are coming back to haunt him” (para. 24). The question it did not determine is whether this offence was so serious that Mr. Febles must be considered undeserving of the status of a refugee.\n\nMr. Febles expressed remorse immediately after the commission of the offence and turned himself in to the police. He pleaded guilty and served his sentence for his criminal conduct. He also admitted that he was suffering from problems with alcohol at the time of the offence. While it is clear that the criminal conduct was serious, what has yet to be determined is whether the crime is so serious that Mr. Febles’ personal circumstances since serving his sentence in 1984 ought to be disregarded in considering whether he is entitled to refugee status.\n\nI would therefore allow the appeal and return the matter to the Immigration and Refugee Board for redetermination in accordance with these reasons. Appeal dismissed, Abella and Cromwell JJ. dissenting.", + "current_to": "2014-10-30", + "last_amended": "", + "history": "Also reported: [2014] 3 SCR 431", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" + }, + { + "id": "scc-13184-1", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 1–3", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "Criminal responsibility does not fall solely upon direct perpetrators of crime. A murder conviction, for example, can attach equally to one who pulls the trigger and one who provides the gun. Complicity is a defining characteristic of crimes in the international context, where some of the world’s worst crimes are committed often at a distance, by a multitude of actors.\n\nWhile principal perpetrators may be distinguished from secondary actors for sentencing, the distinction is irrelevant for the purposes of art. 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”). Article 1F(a) excludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Those who commit these offences are not entitled to the humanitarian protection provided by the Refugee Convention. Where exclusion from refugee status is the only “sanction”, it is not necessary to distinguish between principals, aiders and abettors, or other criminal participants. Individuals may be excluded from refugee protection for international crimes through a variety of modes of commission.\n\nGuilt by association, however, is not one of them.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-2", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 4–6", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "This appeal homes in on the line between association and complicity. It asks whether senior public officials can be excluded from the definition of “refugee” by performing official duties for a government that commits international crimes. It is the task of this Court to determine what degree of knowledge and participation in a criminal activity justifies excluding secondary actors from refugee protection. In other words, for the purposes of art. 1F(a), when does mere association become culpable complicity?\n\nIn contrast to international crime, determining responsibility for domestic crime is often direct. While party liability plays a role, domestic criminal law, in its simplest form, asks whether one individual has committed one crime against one victim. In international criminal law, the focus often switches to the collective and to the links between individuals and collective action. International criminal law typically asks whether a group of individuals, an organization or a state has committed a series of crimes against a group of victims. In other words, party liability plays a much greater role in the commission of those crimes recognized as some of the most serious in the international legal order: R. Cryer et al., An Introduction to International Criminal Law and Procedure (2nd ed. 2010), at p. 361.\n\nAware of the collective aspects of international crime, the Federal Court of Appeal correctly concluded that senior officials may be held criminally responsible for crimes committed by their government if they are aware of the crimes being committed yet remain in their position without protest and continue to defend the interests of the government.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-3", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 7–9", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "However, this does not mean that high-ranking government officials are exposed to a form of complicity by association. Complicity arises by contribution. The collective nature of many international crimes does not erase the importance of holding an individual responsible only for his or her own culpable acts: G. Werle, “Individual Criminal Responsibility in Article 25 ICC Statute” (2007), 5 J.I.C.J. 953, at p. 953.\n\nWhile individuals may be complicit in international crimes without a link to a particular crime, there must be a link between the individuals and the criminal purpose of the group — a matter to which we will later return. In the application of art. 1F(a), this link is established where there are serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose. As we shall see, a broad range of international authorities converge towards the adoption of a “significant contribution test”.\n\nThis contribution-based approach to complicity replaces the personal and knowing participation test developed by the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306. In our view, the personal and knowing participation test has, in some cases, been overextended to capture individuals on the basis of complicity by association. A change to the test is therefore necessary to bring Canadian law in line with international criminal law, the humanitarian purposes of the Refugee Convention, and fundamental criminal law principles.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-4", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 10–13", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "We would therefore allow the appeal and send the matter back to a different panel of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”) for redetermination in accordance with these reasons. The panel will decide whether there are serious reasons for considering that the appellant’s knowledge of, and participation in, the crimes or criminal purposes of his government meet the complicity by contribution test. As always, whether art. 1F(a) operates to exclude an individual from refugee protection will depend on the particular facts of the case. A. Background Facts\n\nThe appellant, Rachidi Ekanza Ezokola, began his career with the government of the Democratic Republic of Congo (“DRC”) in January 1999. He was hired as a financial attaché at the Ministry of Finance and was assigned to the Ministry of Labour, Employment and Social Welfare in Kinshasa. He later worked as a financial adviser to the Ministry of Human Rights and the Ministry of Foreign Affairs and International Cooperation.\n\nIn 2004, the appellant was assigned to the Permanent Mission of the DRC to the United Nations (“UN”) in New York. In his role as second counsellor of embassy, the appellant represented the DRC at international meetings and UN entities including the UN Economic and Social Council. He also acted as a liaison between the Permanent Mission of the DRC and UN development agencies. In 2007, the appellant served as acting chargé d’affaires. In this capacity, he led the Permanent Mission of the DRC and spoke before the Security Council regarding natural resources and conflicts in the DRC.\n\nThe appellant worked at the Permanent Mission until January 2008 when he resigned and fled to Canada.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-5", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 14–15", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant says he ultimately resigned because he refused to serve the government of President Kabila which he considered to be corrupt, antidemocratic and violent. He claims his resignation would be viewed as an act of treason by the DRC government. He claims that the DRC’s intelligence service harassed, intimidated, and threatened him because it suspected he had links to Jean-Pierre Bemba, President Kabila’s opponent. It was on this basis that he sought refugee protection for himself, his wife, and their eight children in Canada. B. Judicial History (1) Immigration and Refugee Board — Refugee Protection Division, 2009 CanLII 89027\n\nThe issue for the Board in determining the appellant’s application for refugee protection was whether the appellant should be excluded from Canada on the basis of s. 98 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”). This provision directly incorporates art. 1F(a) of the Refugee Convention into Canadian law. The Board excluded the appellant from the definition of “refugee” under art. 1F(a). It held that, although the government of the DRC was not an organization with a limited and brutal purpose, it had committed crimes against humanity as defined by the Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998 (“Rome Statute”), and Canadian jurisprudence: paras. 31 and 43. The Board concluded that the government’s crimes continued even as the government itself changed: para. 33.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-6", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "para 16", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Board relied on various reports — including media, governmental, and non-governmental — to find international crimes were committed on both sides of conflicts spanning several years. For instance, at para. 39, it cited a report by Human Rights Watch, dated January 18, 2006, which condemned the conduct of the DRC government (and others): In 2005, combatants from armed groups as well as government soldiers deliberately killed, raped, and abducted civilians and destroyed or looted their property in repeated attacks, particularly in eastern Congo. A feeble justice system failed to prosecute these recent crimes and did nothing to end impunity for war crimes and crimes against humanity committed during the previous two wars. The September 2005 discovery of mass graves from 1996 in the eastern region of Rutshuru served as a reminder of the unpunished mass slaughter of civilians in Congo in the last decade. . . . The government failure to integrate troops of former belligerent groups into the national army and to properly train and pay its soldiers underlay some military abuses. Military abuses such as those that occurred in December 2004 in North Kivu where government soldiers and combatants refusing integration fought and killed at least one hundred civilians, many of them targeted on an ethnic basis, were repeated elsewhere in 2005. In Walungu, South Kivu, government soldiers raped civilians and looted property during operations against the FDLR in late 2004 and early 2005. In Equateur, poorly paid and undisciplined troops went on a rampage in July 2005, killing, raping, and stealing from civilians.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-7", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 16–20", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "As government soldiers tried to take control of Ituri and parts of North and South Kivu, Maniema and Katanga in late 2004 and 2005, both they and the combatants fighting them committed grave violations of international humanitarian and human rights law. (World Report 2006: Events of 2005 (2006), at pp. 90-92)\n\nThe Board also cited reports condemning the DRC authorities’ practice of recruiting child soldiers: paras. 36 and 40.\n\nThe Board concluded that “[t]he evidence clearly shows that the Congolese government represses human rights, carries out civilian massacres and engages in governmental corruption”: para. 43.\n\nIn the Board’s view, the appellant was complicit in these crimes. Based on the appellant’s official rank, he had “personal and knowing awareness” of the crimes committed by his government: para. 71. The Board pointed out that the appellant had joined the government voluntarily and continued to act in his official capacity until he feared for his own safety. In the Board’s view, the appellant’s functions and responsibilities helped to sustain the government of the DRC. The Board therefore had serious reasons for considering that the appellant was complicit in the crimes committed by the government. (2) Federal Court — Mainville J., 2010 FC 662, [2011] 3 F.C.R. 377\n\nThe Federal Court allowed the appellant’s application for judicial review. The court determined that an individual cannot be excluded under art. 1F(a) merely because he had been an employee of a state whose government commits international crimes. Complicity requires a nexus between the claimant and the crimes committed by the government.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-8", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 21–22", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "In order to determine whether this link existed, the court considered the modes of commission provided for in the Rome Statute and concluded that “criminal responsibility for crimes against humanity requires personal participation in the crime alleged or personal control over the events leading to the crime alleged”: para. 86.\n\nIn the court’s view, the required nexus between the claimant and the crimes “may be established by presumption if the claimant held a senior position in the public service, where there are serious reasons for considering that the position in question made it possible for the refugee claimant to commit, incite or conceal the crimes, or to participate or collaborate in the crimes”: para. 4. However, in this case there was “no evidence that tend[ed] to show direct or indirect personal participation by the applicant in the crimes alleged, and there [was] no evidence of incitement or active support by the applicant for those crimes”: para. 104. It was an error to assign responsibility to the appellant solely on the basis of his position within the government, absent a personal nexus between his role and the army or police of the DRC.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-9", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 23–25", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "The court certified the following question: For the purposes of exclusion pursuant to paragraph 1F(a) of the United Nations Refugee Convention, is there complicity by association in crimes against humanity from the fact that the refugee claimant was a public servant in a government that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and did not denounce them, when there is no proof of personal participation, whether direct or indirect, of the refugee claimant in these crimes? (2011 FCA 224, [2011] 3 F.C.R. 417, at para. 28) (3) Federal Court of Appeal — Noël J.A. (Nadon and Pelletier JJ.A.)\n\nThe Federal Court of Appeal answered the certified question in the affirmative, but not before reformulating it as follows: For the purposes of exclusion pursuant to paragraph 1F(a) of the United Nations Refugee Convention, can complicity by association in crimes against humanity be established by the fact that the refugee claimant was a senior public servant in a government that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and remained in his position without denouncing them? [para. 44]\n\nThe Federal Court of Appeal rejected the Federal Court’s approach to complicity, describing it as inconsistent with Canadian jurisprudence and too narrow: paras. 46 and 57. The Federal Court of Appeal concluded that a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government demonstrate “personal and knowing participation” in these crimes and be complicit with the government in their commission. [para. 72]", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-10", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 26–29", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "The court added that “the final outcome will always depend on the facts particular to each case”: para. 72.\n\nThe Federal Court of Appeal decided it was unnecessary to determine whether the conclusion of the Board was reasonable because it had applied the wrong test for complicity. Instead of applying the “personal and knowing participation” test, the Board considered the appellant’s “personal and knowing awareness”: para. 75. The Federal Court of Appeal therefore remitted the matter to a different panel of the Board to apply the personal and knowing participation test to determine whether the appellant was an accomplice in the crimes committed by the DRC. II. Analysis A. Issues\n\nWhether or not the appellant should ultimately be excluded from refugee protection for having committed international crimes will be determined by the Board at a de novo hearing. The task for this Court is to determine what test for complicity will be applied by the art. 1F(a) decision maker. To answer this question, the Court must also address the evidentiary standard applicable to art. 1F(a) determinations.\n\nFor the reasons that follow, we conclude that an individual will be excluded from refugee protection under art. 1F(a) for complicity in international crimes if there are serious reasons for considering that he or she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime. The evidentiary burden falls on the Minister as the party seeking the applicant’s exclusion: Ramirez, at p. 314.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-11", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 30–32", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "In rejecting a guilt-by-association approach to complicity, we have considered (i) the purpose of the Refugee Convention and art. 1F(a); (ii) the role of the Board; (iii) the international law to which art. 1F(a) expressly refers; and (iv) the approach to complicity under art. 1F(a) taken by other state parties to the Refugee Convention. Each of these demonstrates the need to rein in the Canadian approach to complicity under art. 1F(a) to ensure that individuals are not excluded from refugee protection for merely being associated with others who have perpetrated international crimes. B. The Purpose of the Refugee Convention and Article 1F(a)\n\nIn our view, the purpose of the Refugee Convention, together with the purpose of art. 1F(a), sheds light on the proper approach for determining exclusions from refugee protection based on complicity in international crimes: Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, art. 31.\n\nThe preamble to the Refugee Convention highlights the international community’s “profound concern for refugees” and its commitment “to assure refugees the widest possible exercise of . . . fundamental rights and freedoms”. Our approach to art. 1F(a) must reflect this “overarching and clear human rights object and purpose”: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 57.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-12", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 33–35", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "That said, the Refugee Convention’s commitment to refugee protection is broad, but not unbounded. It does not protect international criminals. Incorporated directly into Canadian law by s. 98 of the IRPA , art. 1F(a) guards against abuses of the Refugee Convention by denying refugee protection to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;\n\nAs the Federal Court of Appeal recognized in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, at p. 445: “When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. International criminals, on all sides of the conflicts, are rightly unable to claim refugee status.” In other words, those who create refugees are not refugees themselves: Pushpanathan, at para. 63; Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761, at para. 118.\n\nOn the one hand then, if we approach art. 1F(a) too narrowly, we risk creating safe havens for perpetrators of international crimes — the very scenario the exclusion clause was designed to prevent. On the other hand, a strict reading of art. 1F(a) arguably best promotes the humanitarian aim of the Refugee Convention: United Nations High Commissioner for Refugees (“UNHCR”), “Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, HCR/GIP/03/05, September 4, 2003 (online), at para. 2.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-13", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 36–38", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "The foregoing demonstrates the need for a carefully crafted test for complicity — one that promotes the broad humanitarian goals of the Refugee Convention but also protects the integrity of international refugee protection by ensuring that the authors of crimes against peace, war crimes, and crimes against humanity do not exploit the system to their own advantage. As we will explain, these two aims are properly balanced by a contribution-based test for complicity — one that requires a voluntary, knowing, and significant contribution to the crime or criminal purpose of a group. C. The Role of the Refugee Protection Division: Exclusion Determinations, Not Findings of Guilt\n\nIn addition to the purposes of the Refugee Convention and art. 1F(a), the test for complicity must reflect the role of the Board and must work within the practical realities of refugee proceedings.\n\nA refugee hearing is not a criminal trial before an international tribunal. International criminal tribunals render verdicts for some of the most serious crimes in the international legal order. In contrast, the Board makes exclusion determinations; it does not determine guilt or innocence. The purpose of art. 1F(a) “is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status”: Pushpanathan, at para. 58.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-14", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 39–41", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "To achieve this purpose, Board hearings tend to be less formal than criminal trials. The Board is not bound by traditional rules of evidence: IRPA , at s. 170(g) and (h); Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385, at para. 41; Kumar v. Canada (Citizenship and Immigration), 2009 FC 643 (CanLII), at paras. 28-29. Section 162(2) of the IRPA instructs each division of the Board to “deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit”.\n\nAs we will discuss in more detail below, the differences between a criminal trial and a Board hearing are further reflected in — and accommodated by — the unique evidentiary burden applicable to art. 1F(a) determinations: a person is excluded from the definition of “refugee” on the basis of the “serious reasons for considering” standard.\n\nIn light of these features of refugee proceedings, it is unnecessary to craft a multitude of tests for each mode of commission through which a government official may be held complicit in the crimes committed by his or her government. Unique considerations may arise in cases where the individual is said to have control or responsibility over the alleged perpetrators, or where the individual allegedly made specific contributions to a specific crime (in the form of instigating, ordering, or inciting, for example). However, here we are concerned with general participation in a group’s criminal activity. We must determine when that participation becomes a culpable contribution. D. The Board Must Rely on International Law to Interpret Article 1F(a)", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-15", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 42–43", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "Following the express direction in the text of art. 1F(a), we now turn to international law for guidance. As mentioned, art. 1F(a) excludes individuals when “there are serious reasons for considering that” they have “committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments”. We must therefore consider international criminal law to determine whether an individual should be excluded from refugee protection for complicity in international crimes: Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, 302 N.R. 178, at para. 8. We will also look to international jurisprudence for guidance: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at paras. 82 and 126.\n\nIn our view, international law is relevant both for the elements of the offences and their potential modes of commission. As the appellant stated, art. 1F(a) is not concerned with simply identifying the substantive elements of the offence, but with whether there are serious reasons for considering that the individual has committed a crime as defined in international law. Since there is no dispute in this appeal that the elements of the crimes have been carried out by the government of the DRC, we are concerned here with modes of commission.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-16", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 44–45", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "Whether an individual is complicit in an international crime cannot be considered in light of only one of the world’s legal systems: Ramirez, at p. 315; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), at p. 323. This flows not only from the explicit instruction in art. 1F(a) to apply international law, but also from the extraordinary nature of international crimes. They simply transcend domestic norms. As Fannie Lafontaine explains in Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts (2012), at p. 95: Genocide, crimes against humanity and war crimes, because of their very raison d’être, their particular magnitude and the context of their commission, cannot be assimilated to ordinary crimes, regardless of the latter crimes’ intrinsic gravity.\n\nInternational criminal law, while built upon domestic principles, has adapted the concept of individual responsibility to this setting of collective and large-scale criminality, where crimes are often committed indirectly and at a distance. As Gerhard Werle puts it, at p. 954: When allocating individual responsibility within networks of collective action, it must be kept in mind that the degree of criminal responsibility does not diminish as distance from the actual act increases; in fact, it often grows. Adolf Hitler, for example, sent millions of people to their deaths without ever laying a hand on a victim himself. And mass killer Adolf Eichmann organized the extermination of European Jews from his office in the Berlin headquarters of the “Reichssicherheitshauptamt” of the SS.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-17", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 46–49", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "We are therefore required by both the text of art. 1F(a) and the realities of international crime to look beyond the bounds of Canadian criminal law. We must refrain from interpreting and applying international criminal law as if it were simply the mirror of our domestic criminal law: Cassese’s International Criminal Law (3rd ed. 2013), revised by A. Cassese et al., at pp. 6-7.\n\nThe question is — what are the relevant sources of international criminal law?\n\nIn our view, the best place to start is the Rome Statute. As Lord Brown of Eaton-under-Heywood J.S.C. recognized in R. (J.S. (Sri Lanka)) v. Secretary of State for the Home Department, [2010] UKSC 15, [2011] 1 A.C. 184 (“J.S.”), at para. 9: It is convenient to go at once to the [Rome] Statute, ratified as it now is by more than 100 states and standing as now surely it does as the most comprehensive and authoritative statement of international thinking on the principles that govern liability for the most serious international crimes (which alone could justify the denial of asylum to those otherwise in need of it).\n\nCanada’s acceptance of the Rome Statute as authority on international criminal principles is beyond dispute. Canada is not only party to the Rome Statute, Parliament has implemented the treaty into domestic law through the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 .", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-18", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "para 50", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "Article 25 of the Rome Statute provides extensive descriptions of modes of commission. These enumerated modes of liability have been described as the culmination of the international community’s efforts to codify individual criminal responsibility under international law: A. Cassese, “From Nuremberg to Rome: International Military Tribunals to the International Criminal Court”, in A. Cassese, P. Gaeta and J. R. W. D. Jones, eds., The Rome Statute of the International Criminal Court: A Commentary, vol. I (2002), 3, at pp. 3-4; and E. van Sliedregt, Individual Criminal Responsibility in International Law (2012), at pp. 74-75.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-19", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "para 51", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "That said, we may not rely exclusively on the approach of the International Criminal Court (“ICC”) to complicity. Despite its importance, the Rome Statute cannot be considered as a complete codification of international criminal law. International criminal law derives from a diversity of sources which include the growing body of jurisprudence of international criminal courts: Cassese’s International Criminal Law, at pp. 9-21. Article 1F(a) of the Refugee Convention refers generally to international instruments and the ICC itself has relied on the jurisprudence of ad hoc tribunals to interpret its own statute: Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10-465-Red, Decision on the Confirmation of Charges, 16 December 2011 (ICC, Pre-Trial Chamber I), at para. 280. See also B. Goy, “Individual Criminal Responsibility before the International Criminal Court: A Comparison with the Ad Hoc Tribunals” (2012), 12 Int’l. Crim. L. Rev. 1, at p. 4. In Mugesera, at paras. 82 and 126, this Court highlighted the international law expertise of the ad hoc tribunals and explained that the decisions of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda “should not be disregarded lightly by Canadian courts applying domestic legislative provisions . . . which expressly incorporate customary international law”: para. 126. Accordingly, while our focus will remain on the most recent codification of international criminal law in the Rome Statute, we will also consider other sources, more particularly the jurisprudence of the ad hoc tribunals.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-20", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 52–53", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "As explained above, we are concerned here with the dividing line between mere association and culpable complicity. While further distinctions between modes of commission may be important for sentencing purposes, exclusion from refugee protection applies when there are serious reasons for considering that an individual has committed an international crime, whatever the mode of commission happens to be. Our task then is to identify threshold criteria for the application of the exclusionary clause, art. 1F(a) of the Refugee Convention. Accordingly, the broadest modes of commission recognized under current international criminal law are most relevant to our complicity analysis, namely, common purpose liability under art. 25(3)(d) of the Rome Statute and joint criminal enterprise developed in the ad hoc jurisprudence.\n\nThese two related modes have adapted the concept of individual criminal responsibility to the collective aspects of international crime. However, as the following analysis will show, individual criminal responsibility has not been stretched so far as to capture complicity by mere association or passive acquiescence. In other words, when we look to international criminal law for guidance, even the broadest modes of commission require a link between the individual and the crime or criminal purpose of a group. Therefore, to the extent that the Federal Court of Appeal’s reasons expand complicity under art. 1F(a) in such a way that it includes mere complicity by association or passive acquiescence, they should not be followed. We shall return below, in greater detail, to this issue. E. Common Purpose Under Article 25(3)(d) of the Rome Statute", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-21", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "para 54", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "Article 25(3)(d) of the Rome Statute recognizes a broad residual mode of commission by capturing conduct that “[i]n any other way contributes” to a crime committed or attempted by a group acting with a common purpose: 3. . . . a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: . . . (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; See Cassese’s International Criminal Law, at pp. 175-76.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-22", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 55–56", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "In other words, art. 25(3)(d) captures contributions to a crime where an individual did not have control over the crime and did not make an essential contribution as required for co-perpetration under art. 25(3)(a), did not incite, solicit or induce the crime under art. 25(3)(b), or did not intend to aid or abet a certain specific crime under art. 25(3)(c): Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment Pursuant to Article 74 of the Statute, 14 March 2012 (ICC, Trial Chamber I), at para. 999; Prosecutor v. William Samoei Ruto, ICC-01/09-01/11-373, Decision on the Confirmation of Charges, 23 January 2012 (ICC, Pre-Trial Chamber II), at para. 354; Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10-514, Judgment on the Prosecutor’s Appeal against the Decision on the Confirmation of Charges, 30 May 2012 (ICC, Appeals Chamber), at para. 8, per Judge Fernández de Gurmendi, concurring; Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, 29 January 2007 (ICC, Pre-Trial Chamber I), at para. 337; and Lafontaine, at pp. 237-38.\n\nThe actus reus under para. (d) is distinguishable from the preceding paragraphs under art. 25(3) primarily by the magnitude of contribution required. While the jurisprudence is not completely settled, a pre-trial chamber of the ICC has said that the level of contribution required by art. 25(3)(d) is lower than the forms of commission under paras. (a) to (c). Where commission under para. (a) requires an essential contribution, and para. (c) a substantial one, Pre-Trial Chamber I has concluded that art. 25(3)(d) requires only a significant contribution: Mbarushimana, at paras. 279-85.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-23", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 57–58", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "While the phrase “any other way” captures every imaginable contribution in a qualitative sense, it does not necessarily apply as broadly in a quantitative sense. Not every contribution, no matter how minor, will be caught by art. 25(3)(d). Setting the threshold at significant contribution is critical. As Pre-Trial Chamber I of the ICC said in Mbarushimana, at para. 277: . . . such a threshold is necessary to exclude contributions which, because of their level or nature, were clearly not intended by the drafters of the Statute to give rise to individual criminal responsibility. For instance, many members of a community may provide contributions to a criminal organisation in the knowledge of the group’s criminality, especially where such criminality is public knowledge. Without some threshold level of assistance, every landlord, every grocer, every utility provider, every secretary, every janitor or even every taxpayer who does anything which contributes to a group committing international crimes could satisfy the elements of 25(3)(d) liability for their infinitesimal contribution to the crimes committed.\n\nThe pre-trial chamber went on to explain that the significance of a contribution will depend on the facts of each case, “as it is only by examining a person’s conduct in proper context that a determination can be made as to whether a given contribution has a larger or smaller effect on the crimes committed”: Mbarushimana, at para. 284. On an appeal by the Prosecutor, the majority of the Appeals Chamber declined to determine the degree of contribution required under art. 25(3)(d): paras. 65-69.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-24", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 59–60", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "As for the mens rea requirement, the text of art. 25(3)(d) states that a contribution must be intentional, “made with the aim of furthering the criminal activity or purpose of the group” or “in the knowledge of the intention of the group to commit the crime”. The Pre-Trial Chamber I explained in Mbarushimana, at para. 289, that individuals may be complicit in crimes without possessing the mens rea required by the crime itself: Differently from aiding and abetting under article 25(3)(c) of the Statute, for which intent is always required, knowledge is sufficient to incur liability for contributing to a group of persons acting with a common purpose, under article 25(3)(d) of the Statute. Since knowledge of the group’s criminal intentions is sufficient for criminal responsibility, it is therefore not required for the contributor to have the intent to commit any specific crime and not necessary for him or her to satisfy the mental element of the crimes charged.\n\nWhile the subjective element under art. 25(3)(d) can take the form of intent (accused intends to contribute to a group’s criminal purpose) or knowledge (accused is aware of the group’s intention to commit crimes), recklessness is likely insufficient. The text of art. 25(3)(d) itself does not refer to conduct that might contribute to a crime or criminal purpose, and the mental element codified by art. 30 has been held to exclude dolus eventualis, that is, the awareness of a mere risk of prohibited consequences: Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 15 June 2009 (ICC, Pre-Trial Chamber II), at para. 360. We note that Pre-Trial Chamber I took a different view of art. 30 in Lubanga, at paras. 351-55.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-25", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 61–62", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "As the foregoing demonstrates, complicity under art. 25(3)(d) is not based on rank within or association with a group, but on intentionally or knowingly contributing to a group’s crime or criminal purpose. F. Joint Criminal Enterprise\n\nHaving considered the broadest form of accessory liability under the Rome Statute, we now turn to what is perhaps the broadest and most controversial mode of liability recognized by the ad hoc tribunals: joint criminal enterprise. See Cassese’s International Criminal Law, at pp. 163-75; Cryer, at p. 372.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-26", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 63–64", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "Even though joint criminal enterprise is considered to be a form of principal liability, it is relevant to our task of setting threshold criteria for art. 1F(a) of the Refugee Convention. The line between principal and accessory is not necessarily drawn consistently across international and domestic criminal law. Joint criminal enterprise, like common purpose liability under art. 25(3)(d), captures “lesser” contributions to a crime than aiding and abetting. While aiding and abetting likely requires a substantial contribution to a certain specific crime, joint criminal enterprise and common purpose liability can arise from a significant contribution to a criminal purpose. To the extent that the ICTY Trial Chamber may be seen to have applied a more exacting standard in Prosecutor v. Jovica Stanišić, IT-03-69-T, Judgment, 30 May 2013 (ICTY, Trial Chamber I), it is not in accordance with prevailing appellate authority: Prosecutor v. Duško Tadić, IT-94-1-A, Judgment, 15 July 1999 (ICTY, Appeals Chamber), at para. 229, cited in Lafontaine, at p. 237; Prosecutor v. Radoslav Brđanin, IT-99-36-A, Judgment, 3 April 2007 (ICTY, Appeals Chamber), at paras. 427-28 and 430. Joint criminal enterprise therefore captures individuals who could easily be considered as secondary actors complicit in the crimes of others: Cryer, at p. 372; S. Manacorda and C. Meloni, “Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?” (2011), 9 J.I.C.J. 159, at pp. 166-67.\n\nIn Tadić, the ICTY articulated three forms of joint criminal enterprise: paras. 196-206. For all three, the actus reus is a “significant” contribution to the criminal enterprise: Brđanin, at para. 430.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-27", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 65–66", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "However, the mens rea varies for each form. The first form, JCE I, requires shared intent to perpetrate a certain crime. The second, JCE II, requires knowledge of a system of ill treatment and intent to further this system. The third, JCE III, requires intention to participate in and further the criminal activity or purpose of the group, and intent to contribute to the joint criminal enterprise or the commission of a crime by the group. Under JCE III, liability can extend to a crime other than one agreed to in the common plan if the accused intended to participate in and further the criminal activity of the group and (i) it was foreseeable that such a crime might be perpetrated by members of the group and (ii) the accused willingly took that risk. In other words, where an accused intends to contribute to the common purpose, JCE III captures not only knowing contributions but reckless contributions: see Tadić, at para. 228.\n\nDespite the overlap between joint criminal enterprise and art. 25(3)(d), ICC jurisprudence has kept the two modes distinct. Commentators suggest that JCE III will not play a role at the ICC, largely because of the recklessness component: van Sliedregt, at p. 101; Lafontaine, at p. 238; A. Cassese, “The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise” (2007), 5 J.I.C.J. 109, at p. 132; Manacorda and Meloni, at p. 176.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-28", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 67–69", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "For our purposes, we simply note that joint criminal enterprise, even in its broadest form, does not capture individuals merely based on rank or association within an organization or an institution: Cassese’s International Criminal Law, at p. 163. It requires that the accused have made, at a minimum, a significant contribution to the group’s crime or criminal purpose, made with some form of subjective awareness (whether it be intent, knowledge, or recklessness) of the crime or criminal purpose. In other words, this form of liability, while broad, requires more than a nexus between the accused and the group that committed the crimes. There must be a link between the accused’s conduct and the criminal conduct of the group: Brđanin, at paras. 427-28; Lafontaine, at p. 234; Cryer, at p. 369. G. Summary of Complicity Under International Law\n\nIn sum, while the various modes of commission recognized in international criminal law articulate a broad concept of complicity, individuals will not be held liable for crimes committed by a group simply because they are associated with that group, or because they passively acquiesced to the group’s criminal purpose. At a minimum, complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly) contribute in a significant way to the crime or criminal purpose of a group. H. Comparative Law and Decisions of Other National Courts\n\nOther state parties to the Refugee Convention have approached art. 1F(a) in a manner that adheres to the minimum requirements for complicity set by the international law principles discussed above.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-29", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 70–71", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "In J.S., the U.K. Supreme Court rejected the presumption that an individual is complicit in war crimes if he joins an organization, even where that organization has a limited and brutal purpose. Lord Hope of Craighead D.P.S.C., concurring, stated that “mere membership of an organisation that is committed to the use of violence for political ends is not enough to bring an appellant within the exclusion clauses”: para. 43; see also paras. 31 and 44. Rather, as Lord Kerr of Tonaghmore J.S.C., also concurring, wrote, decision makers must “concentrate on the actual role played by the particular person, taking all material aspects of that role into account so as to decide whether the required degree of participation is established”: para. 55. In his view, this approach “accord[s] more closely . . . with the spirit of articles 25 and 30 of the ICC Rome Statute”: para. 57.\n\nAccording to J.S., an individual would only be excluded under art. 1F(a) “if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose”: para. 38.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-30", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 72–74", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "To assess the accused’s mental state and degree of participation, J.S. provides factors that are remarkably similar to those used by Canadian courts in art. 1F(a) cases: . . . (i) the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum seeker was himself most directly concerned, (ii) whether and, if so, by whom the organisation was proscribed, (iii) how the asylum seeker came to be recruited, (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it, (v) his position, rank, standing and influence in the organisation, (vi) his knowledge of the organisation’s war crimes activities, and (vii) his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes. [para. 30]\n\nThese factors are largely subsumed by the six “non-exhaustive” factors set out in Ryivuze v. Canada (Minister of Citizenship and Immigration), 2007 FC 134, 325 F.T.R. 30, at para. 38: (1) the nature of the organization; (2) the method of recruitment; (3) position/rank in the organization; (4) knowledge of the organization’s atrocities; (5) the length of time in the organization; and (6) the opportunity to leave the organization.\n\nThe factors recognized in U.K. and Canadian jurisprudence help guard against a complicity analysis that would exclude individuals from refugee protection on the basis of mere membership or failure to dissociate from a multifaceted organization which is committing war crimes.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-31", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "para 75", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "Similarly, United States appellate jurisprudence on refugee exclusions does not recognize complicity based on passive acquiescence or “tangential” contributions. While the U.S. “persecutor bar” does not directly incorporate art. 1F(a), it nevertheless represents an approach to exclusion that would only capture those who have committed international crimes as recognized by international criminal law: A.F., at para. 167. A recent decision by the Second Circuit Court of Appeals said: . . . the mere fact that [a person] may be associated with an enterprise that engages in persecution is insufficient by itself to trigger the effects of the persecutor bar. As the Supreme Court’s oft-quoted dicta in Fedorenko v. United States, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981), illustrates, a “guilt by association” approach to the persecutor bar is improper. . . . . . . Before [a claimant] may be held personally accountable for assisting in acts of persecution, there must be some evidence that he himself engaged in conduct that assisted in the persecution of another. (Xu Sheng Gao v. United States Attorney General, 500 F.3d 93 (2007), at paras. 5-6, cited in P. Zambelli, “Problematic Trends in the Analysis of State Protection and Article 1F(a) Exclusion in Canadian Refugee Law” (2011), 23 Int’l. J. Refugee L. 252, at pp. 284-85.)", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-32", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 76–77", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "In our view, the approach to complicity adopted by these state parties adheres to the UNHCR’s recommendation in its Guidelines, at para. 18, although it would ask for a “substantial” contribution: For exclusion to be justified, individual responsibility must be established in relation to a crime covered by Article 1F. . . . In general, individual responsibility flows from the person having committed, or made a substantial contribution to the commission of the criminal act, in the knowledge that his or her act or omission would facilitate the criminal conduct. The individual need not physically have committed the criminal act in question. Instigating, aiding and abetting and participating in a joint criminal enterprise can suffice.\n\nIn sum, the foregoing approaches to complicity all require a nexus between the individual and the group’s crime or criminal purpose. An individual can be complicit without being present at the crime and without physically contributing to the crime. However, the UNHCR has explained, and other state parties have recognized, that to be excluded from the definition of refugee protection, there must be evidence that the individual knowingly made at least a significant contribution to the group’s crime or criminal purpose. Passive membership would not be enough, as indicated above in paras. 70-76. I. The Canadian Approach to Criminal Participation Has Been Overextended", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-33", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 78–79", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "Before being overturned by the Federal Court of Appeal, the Federal Court’s decision in this case was viewed as a potential signal of “a clearer jurisprudence, more closely tied to international standards and to the original wording of the Convention”: A. Kaushal and C. Dauvergne, “The Growing Culture of Exclusion: Trends in Canadian Refugee Exclusions” (2011), 23 Int’l. J. Refugee L. 54, at p. 85. The Federal Court rightly concluded that neither mere membership in a government that had committed international crimes nor knowledge of those crimes is enough to establish complicity: para. 4.\n\nIn our view, the Federal Court’s approach in this case brings appropriate restraint to the test for complicity that had, in some cases, inappropriately shifted its focus towards the criminal activities of the group and away from the individual’s contribution to that criminal activity: see, for example, Osagie v. Canada (Minister of Citizenship and Immigration) (2000), 186 F.T.R. 143; Mpia-Mena-Zambili v. Canada (Minister of Citizenship and Immigration), 2005 FC 1349, 281 F.T.R. 54, at paras. 45-47; Fabela v. Canada (Minister of Citizenship and Immigration), 2005 FC 1028, 277 F.T.R. 20, at paras. 14-19. By answering “yes” to the certified question, the Federal Court of Appeal’s reasons could be seen as having endorsed an overextended approach to complicity, one that captures complicity by association or passive acquiescence.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-34", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 80–82", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "As Noël J.A. noted in this case, a senior official may be complicit in the government’s crimes “by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes”. Nonetheless, the Federal Court of Appeal reasons should not be improperly relied on to find complicity even where the individual has committed no guilty act and has no criminal knowledge or intent, beyond a mere awareness that other members of the government have committed illegal acts.\n\nIn our view, it is necessary to rearticulate the Canadian approach to art. 1F(a) to firmly foreclose exclusions based on such broad forms of complicity. Otherwise, high-ranking officials might be forced to abandon their legitimate duties during times of conflict and national instability in order to maintain their ability to claim asylum. Furthermore, a concept of complicity that leaves any room for guilt by association or passive acquiescence violates two fundamental criminal law principles.\n\nIt is well established in international criminal law that criminal liability does not attach to omissions unless an individual is under a duty to act: Cassese’s International Criminal Law, at pp. 180-82. Accordingly, unless an individual has control or responsibility over the individuals committing international crimes, he or she cannot be complicit by simply remaining in his or her position without protest: Ramirez, at pp. 319-20. Likewise, guilt by association violates the principle of individual criminal responsibility. Individuals can only be liable for their own culpable conduct: van Sliedregt, at p. 17.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-35", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 83–86", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "Accordingly, the decision of the Federal Court of Appeal should not be taken to leave room for rank-based complicity by association or passive acquiescence. Such a reading would perpetuate a departure from international criminal law and fundamental criminal law principles. J. The Canadian Test for Complicity Refined\n\nIn light of the foregoing reasons, it has become necessary to clarify the test for complicity under art. 1F(a). To exclude a claimant from the definition of “refugee” by virtue of art. 1F(a), there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose.\n\nWe will address these key components of the contribution-based test for complicity in turn. In our view, they ensure that decision makers do not overextend the concept of complicity to capture individuals based on mere association or passive acquiescence. (1) Voluntary Contribution to the Crime or Criminal Purpose\n\nIt goes without saying that the contribution to the crime or criminal purpose must be voluntarily made. While this element is not in issue in this case, it is easy to foresee cases where an individual would otherwise be complicit in war crimes but had no realistic choice but to participate in the crime. To assess the voluntariness of a contribution, decision makers should, for example, consider the method of recruitment by the organization and any opportunity to leave the organization. The voluntariness requirement captures the defence of duress which is well recognized in customary international criminal law, as well as in art. 31(1)(d) of the Rome Statute: Cassese’s International Criminal Law, at pp. 215-16. (2) Significant Contribution to the Group’s Crime or Criminal Purpose", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-36", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 87–89", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "In our view, mere association becomes culpable complicity for the purposes of art. 1F(a) when an individual makes a significant contribution to the crime or criminal purpose of a group. As Lord Brown J.S.C. said in J.S., to establish the requisite link between the individual and the group’s criminal conduct, the accused’s contribution does not have to be “directed to specific identifiable crimes” but can be directed to “wider concepts of common design, such as the accomplishment of an organisation’s purpose by whatever means are necessary including the commission of war crimes”: para. 38. This approach to art. 1F(a) is consistent with international criminal law’s recognition of collective and indirect participation in crimes discussed above, as well as s. 21(2) of the Canadian Criminal Code, R.S.C. 1985, c. C-46, which attaches criminal liability based on assistance in carrying out a common unlawful purpose.\n\nGiven that contributions of almost every nature to a group could be characterized as furthering its criminal purpose, the degree of the contribution must be carefully assessed. The requirement of a significant contribution is critical to prevent an unreasonable extension of the notion of criminal participation in international criminal law. (3) Knowing Contribution to the Crime or Criminal Purpose\n\nTo be complicit in crimes committed by the government, the official must be aware of the government’s crime or criminal purpose and aware that his or her conduct will assist in the furtherance of the crime or criminal purpose.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-37", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "para 90", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "In our view, this approach is consistent with the mens rea requirement under art. 30 of the Rome Statute. Article 30(1) explains that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”. Article 30(2)(a) explains that a person has intent where he “means to engage in the conduct”. With respect to consequences, art. 30(2)(b) requires that the individual “means to cause that consequence or is aware that it will occur in the ordinary course of events”. Knowledge is defined in art. 30(3) as “awareness that a circumstance exists or a consequence will occur in the ordinary course of events”. (4) Applying the Test", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-38", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "para 91", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "Whether there are serious reasons for considering that an individual has committed international crimes will depend on the facts of each case. Accordingly, to determine whether an individual’s conduct meets the actus reus and mens rea for complicity, several factors may be of assistance. The following list combines the factors considered by courts in Canada and the U.K., as well as by the ICC. It should serve as a guide in assessing whether an individual has voluntarily made a significant and knowing contribution to a crime or criminal purpose: (i) the size and nature of the organization; (ii) the part of the organization with which the refugee claimant was most directly concerned; (iii) the refugee claimant’s duties and activities within the organization; (iv) the refugee claimant’s position or rank in the organization; (v) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (vi) the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization. See Ryivuze, at para. 38; J.S., at para. 30; and Mbarushimana, Decision on the Confirmation of Charges, at para. 284.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-39", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 92–93", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "When relying on these factors for guidance, the focus must always remain on the individual’s contribution to the crime or criminal purpose. Not only are the factors listed above diverse, they will also have to be applied to diverse circumstances encompassing different social and historical contexts. Refugee claimants come from many countries and appear before the Board with their own life experiences and backgrounds in their respective countries of origin. Thus, the assessment of the factors developed in our jurisprudence, the decisions of the courts of other countries, and the international community will necessarily be highly contextual. Depending on the facts of a particular case, certain factors will go “a long way” in establishing the requisite elements of complicity. Ultimately, however, the factors will be weighed with one key purpose in mind: to determine whether there was a voluntary, significant, and knowing contribution to a crime or criminal purpose.\n\nIn the present case, it will be for the Board to determine which factors are significant, based on the application before it. To provide guidance to the Board in making this determination, it may be of assistance to briefly elaborate on each of the factors listed above.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-40", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 94–95", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "The size and nature of the organization. The size of an organization could help determine the likelihood that the claimant would have known of and participated in the crime or criminal purpose. A smaller organization could increase that likelihood. That likelihood could also be impacted by the nature of the organization. If the organization is multifaceted or heterogeneous, i.e. one that performs both legitimate and criminal acts, the link between the contribution and the criminal purpose will be more tenuous. In contrast, where the group is identified as one with a limited and brutal purpose, the link between the contribution and the criminal purpose will be easier to establish. In such circumstances, a decision maker may more readily infer that the accused had knowledge of the group’s criminal purpose and that his conduct contributed to that purpose. That said, even for groups with a limited and brutal purpose, the individual’s conduct and role within the organization must still be carefully assessed, on an individualized basis, to determine whether the contribution was voluntarily made and had a significant impact on the crime or criminal purpose of the group.\n\nThe part of the organization with which the refugee claimant was most directly concerned. This factor may be relevant if particular parts of the organization were known to be involved with the crime or criminal purpose. For example, where only one part of the organization in question was involved in the crime or criminal purpose, a claimant’s exclusive affiliation with another part(s) of the organization may serve to exonerate him or her for the purpose of art. 1F(a).", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-41", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 96–98", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "The refugee claimant’s duties and activities within the organization. This factor is likely to be significant in any analysis of complicity, because it goes to the heart of a claimant’s day-to-day participation in the activities of the organization. The Board should consider the link between the duties and activities of a claimant, and the crimes and criminal purposes of the organization.\n\nThe refugee claimant’s position or rank in the organization. A high ranking individual in an organization may be more likely to have knowledge of that organization’s crime or criminal purpose. In some cases, a high rank or rapid ascent through the ranks of an organization could evidence strong support of the organization’s criminal purpose. Moreover, by virtue of their position or rank, individuals may have effective control over those directly responsible for criminal acts, possibly engaging art. 28 of the Rome Statute.\n\nThe length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose. It may be easier to establish complicity where an individual has been involved with the organization for a longer period of time. This would increase the chance that the individual had knowledge of the organization’s crime or criminal purpose. A lengthy period of involvement may also increase the significance of an individual’s contribution to the organization’s crime or criminal purpose.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-42", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 99–100", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "The method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization. As mentioned, these two factors directly impact the voluntariness requirement. This requirement may not be satisfied if an individual was coerced into joining, supporting, or remaining in the organization. Similarly, an individual’s involvement with an organization may not be voluntary if he or she did not have the opportunity to leave, especially after acquiring knowledge of its crime or criminal purpose. The Board may wish to consider whether the individual’s specific circumstances (i.e. location, financial resources, and social networks) would have eased or impeded exit.\n\nWe reiterate that the factors discussed above should be relied on only for guidance. We agree with Lord Kerr J.S.C.’s statement in J.S., at para. 55: . . . they are not necessarily exhaustive of the matters to be taken into account, nor will each of the factors be inevitably significant in every case. One needs, I believe, to concentrate on the actual role played by the particular person, taking all material aspects of that role into account so as to decide whether the required degree of participation is established. A full contextual analysis would necessarily include any viable defences, including, but certainly not limited to, the defence of duress, discussed above. K. Evidentiary Standard: Serious Reasons for Considering", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-43", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "para 101", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "Ultimately, the above contribution-based test for complicity is subject to the unique evidentiary standard contained in art. 1F(a) of the Refugee Convention. To recall, the Board does not make determinations of guilt. Its exclusion decisions are therefore not based on proof beyond a reasonable doubt nor on the general civil standard of the balance of probabilities. Rather, art. 1F(a) directs it to decide whether there are “serious reasons for considering” that an individual has committed war crimes, crimes against humanity or crimes against peace. For guidance on applying the evidentiary standard, we agree with Lord Brown J.S.C.’s reasons in J.S., at para. 39: It would not, I think, be helpful to expatiate upon article 1F’s reference to there being “serious reasons for considering” the asylum seeker to have committed a war crime. Clearly the tribunal in Gurung’s case [2003] Imm AR 115 (at the end of para 109) was right to highlight “the lower standard of proof applicable in exclusion clause cases” — lower than that applicable in actual war crimes trials. That said, “serious reasons for considering” obviously imports a higher test for exclusion than would, say, an expression like “reasonable grounds for suspecting”. “Considering” approximates rather to “believing” than to “suspecting”. I am inclined to agree with what Sedley LJ said in Al-Sirri v Secretary of State for the Home Department [2009] Imm AR 624, para 33: “[The phrase used] sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says.”", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-13184-44", + "doc_type": "caselaw", + "act_code": "2013 SCC 40", + "act_short": "Ezokola", + "act_name": "Ezokola v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40", + "marginal_note": "paras 102–103", + "heading": "Complicity and exclusion from refugee protection for international crimes under Article 1F(a)", + "part": "Supreme Court of Canada", + "division": "", + "text": "In our view, this unique evidentiary standard is appropriate to the role of the Board and the realities of an exclusion decision addressed above. The unique evidentiary standard does not, however, justify a relaxed application of fundamental criminal law principles in order to make room for complicity by association. III. Conclusion\n\nFor the foregoing reasons, we would allow the appeal, with costs throughout, and remit the matter to the Refugee Protection Division of the Immigration and Refugee Board for redetermination in accordance with these reasons. A new panel shall apply the contribution-based test for complicity outlined above. A detailed assessment is required to determine whether the particular facts of this case establish serious reasons for considering that the actus reus and mens rea for complicity are present and therefore justify excluding the appellant from the definition of refugee by operation of art. 1F(a) of the Refugee Convention. Appeal allowed with costs throughout.", + "current_to": "2013-07-19", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 678", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" + }, + { + "id": "scc-15665-1", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 1–3", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Abella J. — The Immigration and Refugee Protection Act [1] consists of a number of moving parts intended to work together to ensure a fair and humane immigration system for Canada. One of those parts is refugee policy. Under s. 25(1) of the Act, the Minister has a discretion to exempt foreign nationals from the Act’s requirements if the exemption is justified by humanitarian and compassionate considerations, including the best interests of any child directly affected. The issue in this appeal is whether a decision to deny relief under s. 25(1) to a 17-year-old applicant was a reasonable exercise of the humanitarian and compassionate discretion. In my respectful view, it was not. Background\n\nJeyakannan Kanthasamy is a Tamil from northern Sri Lanka. In April 2010, fearing for his safety after he was subjected to detention and questioning by the army and the police, his family arranged for him to travel to Canada to live with his uncle. He was 16 years old.\n\nWhen he arrived in Canada, he made a claim for refugee protection under ss. 96 and 97, which permit applicants to seek refugee status based on a “well-founded” fear of persecution. His claim was based on a fear that because he is a Tamil, the army, the Eelam People’s Democratic Party, the police, or others would arrest or harm him upon his return to Sri Lanka on suspicion that he supports the Liberation Tigers of Tamil Eelam. The Immigration and Refugee Board refused his claim in February 2011, concluding that the authorities in Sri Lanka had taken steps to improve the situation of Tamils, and that he did not have a profile that would put him at risk if he were returned to that country.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-2", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 4–6", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "In August 2011, he applied for a pre-removal risk assessment, which determines whether an applicant can safely be removed from Canada. The process assesses new risk developments arising after the refugee hearing, but is not a second refugee determination hearing: Martin Jones and Sasha Baglay, Refugee Law (2007), at p. 332. The Officer who decided his pre-removal risk assessment found that Jeyakannan Kanthasamy was credible and accepted the evidence that young Tamils faced discrimination and harassment in Sri Lanka. But she concluded that since this treatment did not rise to the level of persecution, his application should be rejected.\n\nAround the same time, he also filed an application for humanitarian and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act , seeking to apply for permanent resident status from within Canada. He was then 17 years old. The denial of relief would result in his removal from Canada.\n\nThe Officer who reviewed the application concluded that the relief was not justified by humanitarian and compassionate considerations. Drawing on language set out in Guidelines prepared by the Minister, the Officer said she was “not satisfied that return to Sri Lanka would result in hardship that is unusual and undeserved or disproportionate”.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-3", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 7–9", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "On judicial review, the Federal Court held that the test was whether the hardship was “unusual and undeserved or disproportionate” in accordance with the Guidelines, and found that the Officer’s decision to deny relief was reasonable. The Federal Court of Appeal largely agreed with both the test and the result. While it concluded that s. 25(1) was not intended to duplicate refugee proceedings, the evidence from those proceedings can nonetheless be considered for the purpose of determining whether the applicant will face “unusual and undeserved, or disproportionate hardship” if returned to the foreign state.\n\nFor the following reasons, I do not, with respect, agree with the conclusion that the Officer’s decision was reasonable. Analysis\n\nThe Immigration and Refugee Protection Act governs the admissibility, eligibility and removal of non-citizens. Under the Act and its accompanying regulations, foreign nationals — individuals who are neither citizens nor permanent residents — seeking permanent resident status must apply for and obtain a visa before entering Canada: Immigration and Refugee Protection Act , s. 11(1) ; Immigration and Refugee Protection Regulations, SOR/2002-227, s. 6. A permanent resident visa may be issued where the foreign national is not inadmissible and meets the requirements of the Act: Immigration and Refugee Protection Act , s. 11(1) .", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-4", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 10–11", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 25(1) of the Immigration and Refugee Protection Act gives the Minister discretion to exempt foreign nationals from the ordinary requirements of the Act if the Minister is of the opinion that such relief is justified by humanitarian and compassionate considerations. Those considerations are to include the best interests of a child directly affected. At the relevant time, s. 25(1) stated: 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. A brief history helps explain the purpose of humanitarian and compassionate relief under this provision.\n\nUnder the 1952 Immigration Act, R.S.C. 1952, c. 325, the Minister had an almost unlimited discretion to allow individuals into Canada: Freda Hawkins, Canada and Immigration: Public Policy and Public Concern (1972), at pp. 101-3. Although humanitarian and compassionate considerations were not explicitly part of the legislative scheme at the time, the Minister retained the authority to issue permits to allow certain applicants to remain in Canada: Immigration Act (1952), s. 8. These permits “introduced an element of flexibility and humanitarianism into the administration of immigration law”: Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470, at p. 476.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-5", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "para 12", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "A discretion to grant relief on the basis of humanitarian and compassionate considerations became an express part of the legislative scheme in the Immigration Appeal Board Act, S.C. 1966-67, c. 90, which created a quasi-judicial, independent Immigration Appeal Board. Section 15(1) of the Immigration Appeal Board Act gave the new Board the power to stay or quash a deportation order based on “compassionate or humanitarian considerations that in the opinion of the Board warrant the granting of special relief”: s. 15(1)(b)(ii). The reason for this power was explained by John Munro, then Parliamentary Secretary for the Minister of Manpower and Immigration: The law establishes general rules as to who may come to Canada and who may stay in Canada. The rules necessarily are general. They cannot precisely accommodate all the variety of individual circumstances. They must be capable of being tempered in their application, according to the merits of individual cases. There will sometimes be humanitarian or compassionate reasons for admitting people who, under the general rules, are inadmissible. [Emphasis added.] (House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, at p. 13267)", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-6", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 13–14", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The meaning of the phrase “humanitarian and compassionate considerations” was first discussed by the Immigration Appeal Board in the case of Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338. The first Chair of the Board, Janet Scott, held that humanitarian and compassionate considerations refer to “those facts, established by the evidence, which would excite in a reasonable man [sic] 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 provisions of the Immigration Act”: p. 350. This definition was inspired by the dictionary definition of the term “compassion”, which covers “sorrow or pity excited by the distress or misfortunes of another, sympathy”: Chirwa, at p. 350. The Board acknowledged that “this definition implies an element of subjectivity”, but said there also had to be objective evidence upon which special relief ought to be granted: Chirwa, at p. 350.\n\nThe Chirwa test was crafted not only to ensure the availability of compassionate relief, but also to prevent its undue overbreadth. As the Board said: It is clear that in enacting s. 15 (1) (b) (ii) Parliament intended to give this Court the power to mitigate the rigidity of the law in an appropriate case, but it is equally clear that Parliament did not intend s. 15 (1) (b) (ii) of the Immigration Appeal Board Act to be applied so widely as to destroy the essentially exclusionary nature of the Immigration Act and Regulations. [p. 350]", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-7", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 15–16", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "In proceedings before the Special Joint Committee of the Senate and the House of Commons on Immigration Policy in 1975, Janet Scott elaborated on the importance of being able to guard against the unfairness of deportation in certain cases: . . . it was recognized that deportation might fall with much more force on some persons . . . than on others, because of their particular circumstances, and the Board was therefore empowered to mitigate the rigidity of the law in an appropriate case. Section 15 is a humanitarian and equitable section, which gives the Board power to do what the legislator cannot do, that is, take account of particular cases. [Emphasis added.] (Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on Immigration Policy, Issue No. 49, 1st Sess., 30th Parl., September 23, 1975, at p. 12)\n\nIn 1977, Parliament passed comprehensive immigration reforms that introduced humanitarian and compassionate discretion into other areas of the immigration scheme: Immigration Act, 1976, S.C. 1976-77, c. 52. Notably, under s. 115(2), the Governor in Council was given broad authority to facilitate the admission of “any person” on the basis of humanitarian or compassionate considerations: 115. (2) The Governor in Council may by regulation exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Governor in Council is satisfied that the person should be exempted from such regulation or his admission should be facilitated for reasons of public policy or due to the existence of compassionate or humanitarian considerations.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-8", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 17–18", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The role of this discretion was explained by this Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817: [The] words [humanitarian and compassionate considerations] and their meaning must be central in determining whether an individual [humanitarian and compassionate] decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister to determine whether the person’s admission should be facilitated owing to the existence of such considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner. This Court has found that it is necessary for the Minister to consider [a humanitarian and compassionate] request when an application is made . . . . Similarly, when considering it, the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations. [Emphasis deleted; citation omitted; para. 66.]\n\nMore recently, in 2001, Parliament passed another set of comprehensive reforms by enacting the Immigration and Refugee Protection Act . The humanitarian and compassionate discretion previously found in s. 115(2) of the Immigration Act, 1976 was incorporated into the new s. 25(1): United States of America v. Johnson (2002), 62 O.R. (3d) 327 (C.A.), at para. 47; Diarra v. Canada (Minister of Citizenship and Immigration), 2006 FC 1515, at para. 8 (CanLII); Love v. Canada (Minister of Citizenship and Immigration) (2004), 43 Imm. L.R. (3d) 111 (F.C.), at para. 15.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-9", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 19–20", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Legislative Summary of Bill C-11, the Bill that led to the enactment of the Immigration and Refugee Protection Act , explained that s. 25 “continue[d] the important power of the Minister to override the provisions of the Act and grant permanent residence, or an exemption from any applicable criteria or obligation under the Act, on humanitarian and compassionate grounds or for reasons of public policy”: Library of Parliament, “Bill C-11: The Immigration and Refugee Protection Act ”, Legislative Summary LS-397E, by Jay Sinha and Margaret Young, March 26, 2001, at p. 12 (footnote omitted); Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, at para. 41. The humanitarian and compassionate discretion in s. 25(1) was, therefore, like its predecessors, seen as being a flexible and responsive exception to the ordinary operation of the Act, or, in the words of Janet Scott, a discretion “to mitigate the rigidity of the law in an appropriate case”.\n\nAs noted, Chirwa was decided in the context of an appeal to the Immigration Appeal Board under s. 15 of the Immigration Appeal Board Act. Under the current legislative scheme, the Immigration Appeal Division can similarly exercise that discretion for a number of statutorily defined purposes: see ss. 62 to 71 of the Immigration and Refugee Protection Act . The exercise of humanitarian and compassionate discretion under s. 25(1) of the Immigration and Refugee Protection Act , on the other hand, is limited to situations where a foreign national applies for permanent residency but is inadmissible or does not meet the requirements of the Immigration and Refugee Protection Act .", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-10", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 21–24", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "But as the legislative history suggests, the successive series of broadly worded “humanitarian and compassionate” provisions in various immigration statutes had a common purpose, namely, to offer equitable relief in circumstances that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”: Chirwa, at p. 350.\n\nThat purpose was furthered in Ministerial Guidelines designed to assist officers in determining whether humanitarian and compassionate considerations warrant relief under s. 25(1). They state that the determination of whether there are sufficient grounds to justify granting a humanitarian and compassionate application under s. 25(1), is done by an “assessment of hardship”.\n\nThere will inevitably be some hardship associated with being required to leave Canada. This alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds under s. 25(1): see Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463, at para. 13 (CanLII); Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. 206 (F.C.T.D), at para. 12. Nor was s. 25(1) intended to be an alternative immigration scheme: House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, at 15:40 (Peter MacDougall); see also Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001, at 9:55 to 10:00 (Joan Atkinson).\n\nAnd, as is stated in s. 25(1.3), added to the Act in 2010 (S.C. 2010, c. 8), s. 25(1) is not meant to duplicate refugee proceedings under s. 96 or s. 97(1), which assess whether the applicant has established a well-founded fear of persecution, risk of torture, risk to life, or risk of cruel and unusual treatment or punishment.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-11", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 25–26", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "What does warrant relief will clearly vary depending on the facts and context of the case, but officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them: Baker, at paras. 74-75.\n\nAccording to the Guidelines, applicants must demonstrate either “unusual and undeserved” or “disproportionate” hardship for relief under s. 25(1) to be granted. “Unusual and undeserved hardship” is defined as hardship that is “not anticipated or addressed” by the Immigration and Refugee Protection Act or its regulations, and is “beyond the person’s control”. “Disproportionate hardship” is defined as “an unreasonable impact on the applicant due to their personal circumstances”: Citizenship and Immigration Canada, Inland Processing, “IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds” (online), s. 5.10.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-12", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "para 27", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Guidelines further explain the application of the “unusual and undeserved or disproportionate hardship” standard by setting out a non-exhaustive list of factors that may be relevant: 5.11. Factors to consider in assessment of hardship [Section 25(1)] provides the flexibility to grant exemptions to overcome the requirement of obtaining a permanent residence visa from abroad, to overcome class eligibility requirements and/or inadmissibilities, on humanitarian and compassionate grounds. Officers must assess the hardship that would befall the applicant should the requested exemption not be granted. Applicants may base their requests for [humanitarian and compassionate] consideration on any number of factors including, but not limited to: • establishment in Canada; • ties to Canada; • the best interests of any children affected by their application; • factors in their country of origin (this includes but is not limited to: Medical inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not described in [ss. 96 and 97]); • health considerations; • family violence considerations; • consequences of the separation of relatives; • inability to leave Canada has led to establishment; and/or • any other relevant factor they wish to have considered not related to [ss. 96 and 97]. [Emphasis added.] (Inland Processing, s. 5.11)", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-13", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "para 28", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Guidelines confirm that the humanitarian and compassionate determination under s. 25(1) is a global one, and that relevant considerations are to be weighed cumulatively as part of the determination of whether relief is justified in the circumstances: . . . the officer should assess all facts in the application and decide whether a refusal to grant the request for an exemption would, more likely than not, result in unusual and undeserved or disproportionate hardship. . . . Individual [humanitarian and compassionate] factors put forward by the applicant should not be considered in isolation in a determination of the hardship that an applicant would face; rather, hardship is determined as a result of a global assessment of [humanitarian and compassionate] considerations put forth by the applicant. In other words, hardship is assessed by weighing together all of the [humanitarian and compassionate] considerations submitted by the applicant. [Emphasis added.] (Inland Processing, ss. 5.8 and 5.10)", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-14", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "para 29", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "To date, there appear to be two schools of thought on how to approach the factors to be considered in assessing whether humanitarian and compassionate considerations apply under s. 25(1). A number of Federal Court decisions have implicitly rejected the language in Chirwa and have, instead, treated the Guidelines, and the words “unusual and undeserved or disproportionate hardship”, as setting out the test the applicant must meet in order to receive an exemption on the basis of humanitarian and compassionate grounds. In Flores v. Canada (Minister of Citizenship and Immigration), 2013 FC 1002, for example, the Federal Court talks about unusual and undeserved or disproportionate as being the “correct test” in humanitarian and compassionate applications: paras. 36-39 (CanLII). Similarly, in Sivagurunathan v. Canada (Minister of Citizenship and Immigration), 2013 FC 233, the Federal Court noted that it was the applicant’s burden to satisfy the immigration officer that there was unusual and undeserved or disproportionate hardship: para. 13 (CanLII). The Federal Court observed that “[t]his is the test” and that the disadvantages demonstrated by the applicant had to meet this threshold: para. 13. Also see Park v. Canada (Minister of Citizenship and Immigration), 2012 FC 528, at paras. 46-47 (CanLII).", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-15", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "para 30", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "A second approach is found in decisions which treat Chirwa less categorically, using the language in Chirwa as co-extensive with the Guidelines: see Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956, at paras. 16-17 (CanLII); Chen v. Canada (Minister of Citizenship and Immigration), 232 F.T.R. 118, at para. 15. In these decisions, the Federal Court and Federal Court of Appeal have made it clear that the Guidelines and the “unusual and undeserved or disproportionate hardship” threshold merely provide assistance to the immigration officer but that they should not be interpreted as fettering the immigration officer’s discretion to consider factors other than those listed in the Guidelines. In Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555, the Federal Court of Appeal noted that the Guidelines are “not meant as ‘hard and fast’ rules” and are, rather, “an attempt to provide guidance to decision makers when they exercise their discretion”: para. 9. And in Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 621, the Federal Court noted that humanitarian and compassionate considerations “are not limited . . . to hardship” and that the “Guidelines can only be of limited use because they cannot fetter the discretion given by Parliament”: paras. 10 and 12 (CanLII).", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-16", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 31–32", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "This second approach, which seems to me to be more consistent with the goals of s. 25(1), focuses more on the equitable underlying purpose of the humanitarian and compassionate relief application process. It sees the words in the Guidelines as being helpful in assessing when relief should be granted in a given case, but does not treat them as the only possible formulation of when there are humanitarian and compassionate grounds justifying the exercise of discretion.\n\nThere is no doubt, as this Court has recognized, that the Guidelines are useful in indicating what constitutes a reasonable interpretation of a given provision of the Immigration and Refugee Protection Act : Agraira, at para. 85. But as the Guidelines themselves acknowledge, they are “not legally binding” and are “not intended to be either exhaustive or restrictive”: Inland Processing, s. 5. Officers can, in other words, consider the Guidelines in the exercise of their s. 25(1) discretion, but should turn “[their] mind[s] to the specific circumstances of the case”: Donald J. M. Brown and The Honourable John M. Evans with the assistance of Christine E. Deacon, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 12-45. They should not fetter their discretion by treating these informal Guidelines as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion granted by s. 25(1): see Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, at p. 5; Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195 (C.A.), at para. 71.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-17", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 33–34", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The words “unusual and undeserved or disproportionate hardship” should therefore be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1). As a result, what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of “unusual and undeserved or disproportionate hardship” in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.\n\nThis brings us to the fact that s. 25(1) refers to the need to take “into account the best interests of a child directly affected”. In Agraira, LeBel J. noted that these interests include “such matters as children’s rights, needs, and best interests; maintaining connections between family members; and averting the hardship a person would suffer on being sent to a place where he or she has no connections”: para. 41. As the Guidelines note, the “best interests” principle applies to all children under 18 years of age:[2] In an examination of the circumstances of a foreign national under [s. 25(1)], [the Immigration and Refugee Protection Act ] introduces a statutory obligation to take into account the best interests of a child who is directly affected by a decision under this section. This codifies departmental practice into legislation, eliminating any doubt that the interests of a child will be taken into account. This applies to children under the age of 18 years as per the Convention on the Rights of the Child. (Inland Processing, s. 5.12)", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-18", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 35–37", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The “best interests” principle is “highly contextual” because of the “multitude of factors that may impinge on the child’s best interest”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, at para. 11; Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 20. It must therefore be applied in a manner responsive to each child’s particular age, capacity, needs and maturity: see A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, at para. 89. The child’s level of development will guide its precise application in the context of a particular case.\n\nProtecting children through the “best interests of the child” principle is widely understood and accepted in Canada’s legal system: A.B. v. Bragg Communications Inc., [2012] 2 S.C.R. 567, at para. 17. It means “[d]eciding what . . . appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving the needed care and attention”: MacGyver v. Richards (1995), 22 O.R. (3d) 481 (C.A.), at p. 489.\n\nInternational human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child, also stress the centrality of the best interests of a child: Can. T.S. 1992 No. 3; Baker, at para. 71. Article 3(1) of the Convention in particular confirms the primacy of the best interests principle: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-19", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "para 38", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Even before it was expressly included in s. 25(1), this Court in Baker identified the “best interests” principle as an “important” part of the evaluation of humanitarian and compassionate grounds. As this Court said in Baker: . . . attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for [a humanitarian and compassionate] decision to be made in a reasonable manner. . . . . . . for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying [a humanitarian and compassionate] claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. [paras. 74-75]", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-20", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 39–40", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "A decision under s. 25(1) will therefore be found to be unreasonable if the interests of children affected by the decision are not sufficiently considered: Baker, at para. 75. This means that decision-makers must do more than simply state that the interests of a child have been taken into account: Hawthorne, at para. 32. Those interests must be “well identified and defined” and examined “with a great deal of attention” in light of all the evidence: Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.), at paras. 12 and 31; Kolosovs v. Canada (Minister of Citizenship and Immigration), 323 F.T.R. 181, at paras. 9-12.\n\nWhere, as here, the legislation specifically directs that the best interests of a child who is “directly affected” be considered, those interests are a singularly significant focus and perspective: A.C., at paras. 80-81. The Minister’s Guidelines set out relevant considerations for this inquiry: Generally, factors relating to a child’s emotional, social, cultural and physical welfare should be taken into account when raised. Some examples of factors that applicants may raise include but are not limited to: • the age of the child; • the level of dependency between the child and the [humanitarian and compassionate] applicant or the child and their sponsor; • the degree of the child’s establishment in Canada; • the child’s links to the country in relation to which the [humanitarian and compassionate] assessment is being considered; • the conditions of that country and the potential impact on the child; • medical issues or special needs the child may have; • the impact to the child’s education; and • matters related to the child’s gender. (Inland Processing, s. 5.12)", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-21", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 41–42", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is difficult to see how a child can be more “directly affected” than where he or she is the applicant. In my view, the status of the applicant as a child triggers not only the requirement that the “best interests” be treated as a significant factor in the analysis, it should also influence the manner in which the child’s other circumstances are evaluated. And since “[c]hildren will rarely, if ever, be deserving of any hardship”, the concept of “unusual and undeserved hardship” is presumptively inapplicable to the assessment of the hardship invoked by a child to support his or her application for humanitarian and compassionate relief: Hawthorne, at para. 9. Because children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief: see Kim v. Canada (Citizenship and Immigration), [2011] 2 F.C.R. 448 (F.C.), at para. 58; UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, December 22, 2009. Application\n\nIn considering the standard of review, this Court “step[s] into the shoes” of the reviewing court: Agraira, at para. 46. This means that the question for this Court is whether the reviewing court identified the appropriate standard of review and applied it properly: Agraira, at para. 45.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-22", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 43–44", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "In this case, the Federal Court applied a reasonableness standard. The Federal Court of Appeal, however, concluded that the appropriate standard of review was correctness because there was a certified question. It suggested that this Court’s approach in Agraira, where the standard of review was reasonableness despite the presence of a certified question, was at odds with the prior case law. I respectfully disagree.\n\nThe Federal Court of Appeal refers to one case from this Court to support this point: Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706. This case is not particularly helpful. It was decided before Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, there was no discussion of the impact of a certified question on the issue of standard of review, and the parties asked that correctness be applied: para. 71. In any event, the case law from this Court confirms that certified questions are not decisive of the standard of review: Baker, at para. 58; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at para. 23. As the Court said in Baker, at para. 12, the certification of a question of general importance may be the “trigger” by which an appeal is permitted. The subject of the appeal is still the judgment itself, not merely the certified question. The fact that the reviewing judge in this case considered the question to be of general importance is relevant, but not determinative. Despite the presence of a certified question, the appropriate standard of review is reasonableness: Baker, at para. 62.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-23", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "para 45", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Applying that standard, in my respectful view, the Officer failed to consider Jeyakannan Kanthasamy’s circumstances as a whole, and took an unduly narrow approach to the assessment of the circumstances raised in the application. She failed to give sufficiently serious consideration to his youth, his mental health and the evidence that he would suffer discrimination if he were returned to Sri Lanka. Instead, she took a segmented approach, assessed each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”, then appeared to discount each from her final conclusion because it failed to satisfy that threshold. Her literal obedience to those adjectives, which do not appear anywhere in s. 25(1), rather than looking at his circumstances as a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision. This had the effect of improperly restricting her discretion and rendering her decision unreasonable.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-24", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 46–47", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "In discussing the effect removal would have on Jeyakannan Kanthasamy’s mental health, for example, the Officer said she “[did] not dispute the psychological report” and “accept[ed] the diagnosis”. The report concluded that he suffered from post-traumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood resulting from his experiences in Sri Lanka, and that his condition would deteriorate if he was removed from Canada. The Officer nonetheless inexplicably discounted the report: . . . the applicant has provided insufficient evidence that he has been or is currently in treatment regarding the aforementioned issues or that he could not obtain treatment if required in his native Sri Lanka or that in doing so it would amount to hardship that is unusual and undeserved or disproportionate.\n\nHaving accepted the psychological diagnosis, it is unclear why the Officer would nonetheless have required Jeyakannan Kanthasamy to adduce additional evidence about whether he did or did not seek treatment, whether any was even available, or what treatment was or was not available in Sri Lanka. Once she accepted that he had post-traumatic stress disorder, adjustment disorder, and depression based on his experiences in Sri Lanka, requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-25", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "para 48", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Moreover, in her exclusive focus on whether treatment was available in Sri Lanka, the Officer ignored what the effect of removal from Canada would be on his mental health. As the Guidelines indicate, health considerations in addition to medical inadequacies in the country of origin, may be relevant: Inland Processing, s. 5.11. As a result, the very fact that Jeyakannan Kanthasamy’s mental health would likely worsen if he were to be removed to Sri Lanka is a relevant consideration that must be identified and weighed regardless of whether there is treatment available in Sri Lanka to help treat his condition: Davis v. Canada (Minister of Citizenship and Immigration) (2011), 96 Imm. L.R. (3d) 267 (F.C.); Martinez v. Canada (Minister of Citizenship and Immigration) (2012), 14 Imm. L.R. (4th) 66 (F.C.). As previously noted, Jeyakannan Kanthasamy was arrested, detained and beaten by the Sri Lankan police which left psychological scars. Yet despite the clear and uncontradicted evidence of such harm in the psychological report, in applying the “unusual and undeserved or disproportionate hardship” standard to the individual factor of the availability of medical care in Sri Lanka — and finding that seeking such care would not meet that threshold — the Officer discounted Jeyakannan Kanthasamy’s health problems in her analysis.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-26", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 49–50", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "And while the Officer did not “dispute the psychological report presented”, she found that the medical opinion “rest[ed] mainly on hearsay” because the psychologist was “not a witness of the events that led to the anxiety experienced by the applicant”. This disregards the unavoidable reality that psychological reports like the one in this case will necessarily be based to some degree on “hearsay”. Only rarely will a mental health professional personally witness the events for which a patient seeks professional assistance. To suggest that applicants for relief on humanitarian and compassionate grounds may only file expert reports from professionals who have witnessed the facts or events underlying their findings, is unrealistic and results in the absence of significant evidence. In any event, a psychologist need not be an expert on country conditions in a particular country to provide expert information about the probable psychological effect of removal from Canada.\n\nThe Officer applied a similarly constricted approach to her analysis of whether Jeyakannan Kanthasamy would face discrimination. The Officer took particular note of s. 25(1.3), which led her to decline to consider elements of his application that related to “fear of persecution, torture, risk to life or cruel and unusual treatment . . . on the basis of his race and nationality” as a young Tamil, which she suggested are part of the determination of refugee status or the pre-removal risk assessment.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-27", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 51–52", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "As the Federal Court of Appeal concluded in this case, s. 25(1.3) does not prevent the admission into evidence of facts adduced in proceedings under ss. 96 and 97. The role of the officer making a determination under s. 25(1) is to ask whether this evidence, along with any other evidence an applicant wishes to raise, though insufficient to support a s. 96 or s. 97 claim, nonetheless suggests that “humanitarian and compassionate considerations” warrant an exemption from the normal application of the Immigration and Refugee Protection Act . In other words, the officer does not determine whether a well-founded fear of persecution, risk to life, and risk of cruel and unusual treatment or punishment has been established — those determinations are made under ss. 96 and 97 — but he or she can take the underlying facts into account in determining whether the applicant’s circumstances warrant humanitarian and compassionate relief.\n\nThe Officer agreed to consider the hardship Jeyakannan Kanthasamy would likely endure as discrimination in Sri Lanka against young Tamil men. She also accepted evidence that there was discrimination against Tamils in Sri Lanka, particularly against young Tamil men from the north, who are routinely targeted by police. In her view, however, young Tamils are targeted only where there is suspicion of ties to the Liberation Tigers of Tamil Eelam, and the government had been making efforts to improve the situation for Tamils. She concluded that “the onus remains on the applicant to demonstrate that these country conditions would affect him personally”.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-28", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 53–54", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "This effectively resulted in the Officer concluding that, in the absence of evidence that Jeyakannan Kanthasamy would be personally targeted by discriminatory action, there was no evidence of discrimination. With respect, the Officer’s approach failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against. Discrimination for the purpose of humanitarian and compassionate applications “could manifest in isolated incidents or permeate systemically”, and even “[a] series of discriminatory events that do not give rise to persecution must be considered cumulatively”: Jamie Chai Yun Liew and Donald Galloway, Immigration Law (2nd ed. 2015), at p. 413, citing Divakaran v. Canada (Minister of Citizenship and Immigration), 2011 FC 633.\n\nHere, however, the Officer required Jeyakannan Kanthasamy to present direct evidence that he would face such a risk of discrimination if deported. This not only undermines the humanitarian purpose of s. 25(1), it reflects an anemic view of discrimination that this Court largely eschewed decades ago: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 173-74; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Quebec (Attorney General) v. A, [2013] 1 S.C.R. 61, at paras. 318-19 and 321-38.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-29", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "para 55", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Even the Guidelines, expressly relying on this Court’s decision in Andrews, encourage an approach to discrimination that does not require evidence that the applicant will be personally targeted: 5.16. [Humanitarian and compassionate] and hardship: Factors in the country of origin to be considered While [ss. 96 and 97] factors may not be considered, the decision-maker must take into account elements related to the hardships that affect the foreign national. Some examples of what those “hardships” may include are: . . . • discrimination which does not amount to persecution; • adverse country conditions that have a direct negative impact on the applicant. . . . Discrimination Discrimination is: A distinction based on the personal characteristics of an individual that results in some disadvantage to that individual. In Andrews, [the] Court wrote: “Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.” (Inland Processing, s. 5.16)", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-30", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 56–57", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "As these passages suggest, applicants need only show that they would likely be affected by adverse conditions such as discrimination. Evidence of discrimination experienced by others who share the applicant’s identity is therefore clearly relevant under s. 25(1), whether or not the applicant has evidence of being personally targeted, and reasonable inferences can be drawn from those experiences. Rennie J. persuasively explained the reasons for permitting reasonable inferences in such circumstances in Aboubacar v. Canada (Minister of Citizenship and Immigration), 2014 FC 714: While claims for humanitarian and compassionate relief under section 25 must be supported by evidence, there are circumstances where the conditions in the country of origin are such that they support a reasoned inference as to the challenges a particular applicant would face on return . . . . This is not speculation, rather it is a reasoned inference, of a non-speculative nature, as to the hardship an individual would face, and thus provides an evidentiary foundation for a meaningful, individualized analysis . . . . [para. 12 (CanLII)]\n\nFinally, even though Jeyakannan Kanthasamy’s current age makes this issue one that no longer requires intervention, the Officer’s analysis of the “best interests” factor cannot be characterized as anything other than perfunctory. She simply stated, in a single paragraph, that Jeyakannan Kanthasamy’s best interests lay in returning to Sri Lanka where he had grown up and where his immediate family continued to reside. In my view, this fails to accord with the “serious weight and consideration” this Court in Baker identified as essential to a proper appreciation of a child’s best interests: para. 65.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-31", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "para 58", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "At no point did the Officer appear to turn her mind to how his status as a child affected the evaluation of the other evidence raised in his application. Instead, she atomized her evaluation of each of the other elements of his application, referring to his status as a child only in isolation. In her assessment of his level of establishment in Canada, for example, she wrote: . . . a person in Canada making a claim to refugee status is afforded the tools such as a study permit that would allow one to be self-sufficient and to integrate into the Canadian community. Therefore, in the case at hand, it is expected that a certain level of establishment would have taken place during the applicant’s stay in Canada. It is understandable that [Jeyakannan Kanthasamy] would like to remain in Canada and I accept that [Jeyakannan Kanthasamy’s] removal to Sri Lanka would be an inconvenience; however, I am not satisfied that he has established himself to such a degree that return to Sri Lanka would amount to unusual and undeserved or disproportionate hardship. [Emphasis added.] Nowhere did the Officer ask whether the effect of separating Jeyakannan Kanthasamy from the people he was close to in Canada would be magnified by the fact that his relationships with them developed when he was a teenager. This approach is inconsistent with how hardship should be uniquely addressed for children.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-32", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 59–61", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Moreover, by evaluating Jeyakannan Kanthasamy’s best interests through the same literal approach she applied to each of his other circumstances — whether the hardship was “unusual and undeserved or disproportionate” — she misconstrued the best interests of the child analysis, most crucially disregarding the guiding admonition that “[c]hildren will rarely, if ever, be deserving of any hardship”: Hawthorne, at para. 9. See also Williams v. Canada (Minister of Citizenship and Immigration), 2012 FC 166, at paras. 64-67 (CanLII).\n\nFinding that no single factor amounted to hardship that was “unusual and undeserved or disproportionate”, the Officer ultimately concluded that humanitarian and compassionate relief was not warranted. But these three adjectives are merely descriptive, not separate legal thresholds to be strictly construed. Finally, the Officer not only unreasonably discounted both the psychological report and the clear and uncontradicted evidence of a risk of discrimination, she avoided the requisite analysis of whether, in light of the humanitarian purpose of s. 25(1) of the Immigration and Refugee Protection Act , the evidence as a whole justified relief. This approach unduly fettered her discretion and, in my respectful view, led to its unreasonable exercise.\n\nI would therefore allow the appeal with costs, set aside the Officer’s decision, and remit the matter for reconsideration in light of these reasons. The reasons of Moldaver and Wagner JJ. were delivered by Moldaver J. (dissenting) — I. Overview", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-33", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 62–64", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Jeyakannan Kanthasamy applied for a humanitarian and compassionate (“H&C”) exemption under s. 25(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”). The exemption would have allowed him to apply for permanent resident status from within Canada. His application was rejected. He seeks to overturn that decision on the grounds that the Senior Immigration Officer (the “Officer”) applied the wrong legal test and unreasonably denied his application.\n\nSection 25(1) is a safety valve that supplements the two normal streams by which foreign nationals can come to Canada permanently: the immigration classes and the refugee process. It empowers the Minister of Citizenship and Immigration (the “Minister”) to grant applicants relief from the requirements of the IRPA when such relief is justified by H&C considerations. Properly construed, it provides a flexible means of relief for applicants whose cases are exceptional and compelling. For reasons that will become apparent, I am of the view that in deciding whether to grant relief under s. 25(1), decision makers must determine whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought.\n\nMeasured against this standard, and bearing in mind the deference that is owed to decisions made under s. 25(1), the Officer’s decision was reasonable. Accordingly, I would uphold that decision and dismiss Mr. Kanthasamy’s appeal. II. Factual Background", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-34", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 65–67", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Kanthasamy is a Tamil who grew up in northern Sri Lanka during that country’s civil war. Although the war ended in 2009, the situation in Sri Lanka remained unstable, and young Tamil men in particular faced a heightened risk of being subjected to discriminatory security measures. Mr. Kanthasamy’s family feared for his safety and arranged to send him to Canada. He arrived here using a false passport in April 2010. He was 16 years old. A. Procedural History\n\nOne month following Mr. Kanthasamy’s arrival in Canada, he made a claim for refugee protection. That claim was denied in February 2011. In denying his claim, the Refugee Protection Division tribunal determined that he did not have a well-founded fear of persecution in Sri Lanka, and that removal to Sri Lanka would not subject him personally to a risk of death, torture, or cruel and unusual treatment or punishment. His application seeking leave to have this decision judicially reviewed was dismissed in May 2011.\n\nIn July 2011, Mr. Kanthasamy applied under s. 25(1) to be exempted from the requirement that he apply for permanent resident status from outside Canada (the “H&C application”). His H&C application was received one day before his 18th birthday. He also applied for a Pre-Removal Risk Assessment (“PRRA”) in August 2011.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-35", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 68–70", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Both his PRRA and H&C application were denied in January 2012. In the PRRA decision, the immigration officer concluded that Mr. Kanthasamy would not face “more than a mere possibility of persecution in Sri Lanka”, and that, on balance, he was not likely “to face a danger of torture, or a risk to life, or a risk of cruel and unusual treatment or punishment”. Mr. Kanthasamy initially sought leave for judicial review of his PRRA denial, but in March 2012, after securing an agreement from the Minister to reconsider his H&C application, he withdrew his application for leave.\n\nOn reconsideration, Mr. Kanthasamy’s H&C application was again denied. Initial reasons for decision were provided in April 2012 and an addendum was released in July 2012. These two sets of reasons comprise the Officer’s decision. Mr. Kanthasamy challenged that decision by way of judicial review in the Federal Court. His application for judicial review was dismissed, as was his subsequent appeal to the Federal Court of Appeal. He now appeals with leave to this Court. B. Facts Underlying Mr. Kanthasamy’s H&C Application\n\nThe factual record underlying Mr. Kanthasamy’s H&C application can be distilled into four categories: (1) his past mistreatment by Sri Lankan authorities; (2) the conditions he would face if he were removed to Sri Lanka; (3) the psychological consequences of his return to Sri Lanka; and (4) his establishment in Canada. (1) Mistreatment by Sri Lankan Authorities", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-36", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 71–73", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The evidence of past mistreatment focuses on two incidents which occurred shortly before Mr. Kanthasamy left Sri Lanka. In March 2010, he was arrested at his home and taken to an army camp in his village, where he was detained for one day. During his detention, he was held in a dark room for three to four hours. Soldiers visited him sporadically and touched him with their guns, kicked him, and threatened to kill him if he did not cooperate. The soldiers wanted Mr. Kanthasamy to identify supporters of the Liberation Tigers of Tamil Eelam (“LTTE”), an anti-government militant group. He was ultimately released with the warning that he would be re-arrested if he helped to conceal LTTE supporters in his village.\n\nAfter his release, members of a pro-government paramilitary group came to his home, questioned him, and pressured him to join their group. They warned Mr. Kanthasamy’s father to watch him, as the LTTE was trying to recruit young Tamil men. His father was concerned for Mr. Kanthasamy’s safety, and arranged to send him from his home village in northern Sri Lanka to the capital, Colombo, where he could obtain passage to Canada.\n\nThe second incident of mistreatment occurred in Colombo in April 2010. Mr. Kanthasamy was arrested by police and detained for one day. During his detention, he was threatened, physically assaulted, and interrogated once again about any involvement with the LTTE. He was released after paying money to the police, but was warned that he could not stay in Colombo. Shortly after this incident, Mr. Kanthasamy made his way to Canada using a false passport. (2) Present-Day Conditions in Sri Lanka", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-37", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 74–75", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The record contains conflicting evidence about conditions in Sri Lanka and the extent to which the treatment of Tamils had improved since the end of the civil war and the defeat of the LTTE in 2009. Mr. Kanthasamy put forward evidence suggesting that young Tamil men in northern Sri Lanka still faced “frequent harassment” and “abusive behaviour” by government and paramilitary forces, and that security measures targeted Tamils in a disproportionate and discriminatory manner. He also submitted evidence that the Sri Lankan government continued to engage in torture and that some failed Tamil asylum seekers had faced arbitrary arrest and torture upon their return to Sri Lanka. On the other hand, two research packages prepared by the Immigration and Refugee Board, which summarized reports from news, academic and other sources on the treatment of Tamils in Sri Lanka, contained evidence that the harassment and government surveillance of Tamils had decreased since 2009. (3) Psychological Consequences of Return to Sri Lanka\n\nMr. Kanthasamy was examined by a clinical psychologist in March 2012, and he submitted a psychological assessment in support of his H&C application. The psychologist, Dr. Kanagaratnam, outlined Mr. Kanthasamy’s history in Sri Lanka, including the two instances of arrest and interrogation. Mr. Kanthasamy described to her how the ongoing immigration proceedings had caused him to experience difficulty sleeping, difficulties with concentration and recall, and a reduced appetite. She noted that he also reported symptoms of hyper-arousal and hyper-vigilance when he saw military vehicles or heard the sounds of aircraft. According to Mr. Kanthasamy, he began experiencing these additional symptoms one to three months prior to his psychological evaluation.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-38", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 76–78", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Dr. Kanagaratnam diagnosed Mr. Kanthasamy with anxiety, depression and post-traumatic stress disorder. Noting that “events that evoke elements of past trauma” can trigger the re-emergence of these conditions, she concluded that due to “a realistic and imminent threat to his safety, it is most likely that [Mr. Kanthasamy’s] condition [would] further deteriorate psychologically if he [were] to be deported” (emphasis added). (4) Establishment in Canada\n\nMr. Kanthasamy’s parents and three of his four siblings live in Sri Lanka. He had been living in Canada with his uncle, aunt and three cousins. To establish the strength of his attachment to Canada, Mr. Kanthasamy submitted evidence that he was “very close” to his Canadian relatives and they would be “very upset” if he had to return to Sri Lanka. At the time of his H&C application, he was enrolled in high school, worked part-time in his uncle’s hair salon and volunteered at a local temple. He had spent approximately 16 months in Canada. III. Decisions Below A. Decision on Mr. Kanthasamy’s H&C Application\n\nMr. Kanthasamy raised four factors in support of his application for relief under s. 25(1): (1) personalized risk of discrimination; (2) establishment in Canada; (3) the psychological impact of removal from Canada; and (4) his best interests as a child.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-39", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "para 79", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "In her reasons for dismissing his H&C application, the Officer stated that Mr. Kanthasamy bore the burden of establishing that the “hardship . . . would be . . . unusual and undeserved or . . . disproportionate”. This test initially appeared in the Minister’s immigration processing manual some three decades ago (Employment and Immigration Canada, Immigration Manual (1986), s. 1.39). It has been repeatedly applied by the Federal Court since then (see, for example, Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956; Pan v. Canada (Minister of Citizenship and Immigration), 2008 FC 1303; Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463). The current manual employs the same hardship test and provides a non-exhaustive list of factors for immigration officers to consider when assessing applications under s. 25(1) (Citizenship and Immigration Canada, Inland Processing, “IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds”, ss. 5.10 and 5.11 (the “Guidelines”)). It is against this backdrop that the Officer evaluated the factors raised by Mr. Kanthasamy.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-40", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 80–82", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Officer accepted that young Tamil males continued to face discriminatory treatment by authorities. However, she noted that the focus of the government’s attention was on suspected LTTE supporters and that Mr. Kanthasamy had failed to present sufficient evidence that he would be personally targeted by security forces. While recognizing Mr. Kanthasamy’s establishment in Canada, the Officer observed that it had occurred while he was under a removal order, and concluded that returning to Sri Lanka would not rise to the level of hardship. In evaluating the psychological evidence, the Officer accepted Dr. Kanagaratnam’s medical diagnoses, but was not satisfied that Mr. Kanthasamy would be unable to obtain treatment for his conditions in Sri Lanka. Regarding “the best interests of the child”, the Officer concluded that it was in Mr. Kanthasamy’s best interests to return to Sri Lanka where he would have the care and support of his parents and siblings.\n\nReviewing the record in its entirety, the Officer was unpersuaded that return to Sri Lanka would subject Mr. Kanthasamy to unusual and undeserved or disproportionate hardship. She concluded that H&C considerations did not justify granting an exemption. B. Judicial Review and Appeal\n\nOn judicial review, Mr. Kanthasamy challenged the Officer’s decision on several grounds (2013 FC 802, [2014] 3 F.C.R. 438). Among them, he claimed the Officer unreasonably concluded that he would not face a personalized risk of discrimination in Sri Lanka. Further, she unreasonably discounted evidence relating to his establishment in Canada and the psychological impact of deportation to Sri Lanka. Finally, she did not adequately consider his best interests as a child.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-41", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 83–84", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Kane J. dismissed the application for judicial review. In her view, the Officer’s conclusions on these points were reasonable. The Federal Court of Appeal unanimously dismissed Mr. Kanthasamy’s appeal (2014 FCA 113, [2015] 1 F.C.R. 335, Blais C.J., Sharlow and Stratas JJ.A.). Writing for the court, Stratas J.A. concluded that subject to this Court holding otherwise, the hardship test reflected the appropriate standard to be applied under s. 25(1) (paras. 47-49). He cautioned against applying the list of factors in the Guidelines as a closed list, but concluded the Officer had not done so in this case (paras. 51-53). The Officer had instead weighed the evidence and come to a reasonable decision. IV. Analysis\n\nThis case raises two issues. The first issue is one of statutory interpretation: the meaning of the phrase “justified by humanitarian and compassionate considerations” in s. 25(1) of the IRPA . At the time of Mr. Kanthasamy’s application, s. 25(1) read as follows: 25. (1) The Minister . . . may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-42", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 85–87", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "My colleague Justice Abella has considered the meaning of the phrase in question and I agree with much of what she says. With respect, however, I cannot agree with the test she proposes for granting relief under s. 25(1). The scheme of the IRPA and the intention of Parliament in enacting s. 25(1) and its predecessors all suggest that s. 25(1) is meant to provide a flexible — but exceptional — mechanism for relief. Giving it an overly broad interpretation risks creating a separate, freestanding immigration process, something Parliament clearly did not intend.\n\nThe second issue is whether, in light of the meaning of s. 25(1), the Officer’s decision to deny Mr. Kanthasamy an exemption was reasonable. Unlike my colleague, I am respectfully of the view that it was. A. Standard of Review\n\nI find it unnecessary to decide whether the standard of review applicable to the Officer’s interpretation of s. 25(1) is correctness or reasonableness. For reasons that will become apparent, had she applied the test set out in these reasons, she would inevitably have come to the same result. B. The Role of Section 25(1) Within the IRPA", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-43", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 88–89", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The IRPA and its regulations create a carefully tailored scheme, with two normal streams by which foreign nationals can come to Canada permanently: the immigration classes and the refugee process. Within each stream, Parliament has established a set of criteria that reflect Canada’s immigration and refugee policy goals and international obligations. These criteria anticipate most circumstances in which foreign nationals should be admitted to Canada. Parliament has also established procedures for determining whether an applicant meets these criteria, and procedural safeguards designed to ensure that these criteria have been properly applied, such as internal appeals, judicial review and the PRRA process.\n\nHowever, as with any administrative scheme, Parliament recognized that cases could arise in which the strict application of the rules would not reflect Canada’s policy goals, or would lead to an arbitrary or inhumane result. With this in mind, it empowered the Minister to grant some applicants special relief if they could convince the Minister that the relief sought was “justified by humanitarian and compassionate considerations” (IRPA , s. 25(1) ).", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-44", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "para 90", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The legislative history of the H&C provision makes clear that the provision was not intended as a separate category for admission to Canada, but rather as a safety valve for exceptional cases (see House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, at pp. 13267-68). Though the terms “humanitarian” and “compassionate” have remained unchanged since the provision was first enacted, the provision has been debated, revised and re-enacted multiple times (see Immigration Appeal Board Act, S.C. 1966-67, c. 90, s. 15(1)(b)(ii); Immigration Act, R.S.C. 1985, c. I-2, s. 114(2); Immigration and Refugee Protection Act , S.C. 2001, c. 27, s. 25(1) ; Balanced Refugee Reform Act, S.C. 2010, c. 8, s. 4). Notably, when Parliament amended the provision in 2010, it did so with a view to emphasizing the provision’s original purpose. As Peter MacDougall, the Director General of Refugees at the Department of Citizenship and Immigration, put it at the time: . . . the original intent of the H and C provision was to provide the government with the flexibility to approve exceptional and compelling cases not anticipated in the Immigration and Refugee Protection Act . It was never intended to be an alternate immigration stream or an appeal mechanism for failed asylum claimants. It should be reserved for exceptional cases. But what has happened is that some failed asylum claimants use the humanitarian and compassionate provision in another process to try to remain in Canada. In fact, more than half of the humanitarian and compassionate backlog is now made up of failed asylum claimants. [Emphasis added.] (House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, at 15:40)", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-45", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 91–92", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. MacDougall’s comments pertained, inter alia, to what is now s. 25(1.3) of the IRPA , which reads as follows: 25. . . . (1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national. The interpretation of this provision arises in this case. In the Federal Court of Appeal, Stratas J.A. concluded that it was “not meant to change the overall standard” for granting s. 25(1) relief (para. 66). As he explained, “the evidence adduced in previous proceedings under sections 96 and 97 . . . is admissible in subsection 25(1) proceedings” (para. 73). Section 25(1.3) requires officers to “assess that evidence through the lens of the subsection 25(1) test” and “not to undertake another section 96 or 97 risk assessment or substitute [their] decision for the Refugee Protection Division’s” (paras. 73-74).\n\nI agree with Stratas J.A.’s interpretation of s. 25(1.3). This subsection reminds decision makers that the H&C provision is not meant to be a second refugee proceeding with a lower threshold for admission. However, it does not prevent decision makers from looking at the facts and circumstances raised in the ss. 96 and 97 proceedings.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-46", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 93–94", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "In keeping with this legislative history, courts have recognized the exceptional nature of the H&C provision. This Court has described it as a “plea to the executive branch for special consideration” (Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 64) and as “involv[ing] the exercise of considerable discretion” (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 31). The Federal Court at both the trial and appellate level has emphasized that the provision is both exceptional and discretionary (see, for example, Paz v. Canada (Minister of Citizenship and Immigration), 2009 FC 412, at para. 15; Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 (leave to appeal refused, [2002] 4 S.C.R. vi), at para. 15; Pannu v. Canada (Minister of Citizenship and Immigration), 2006 FC 1356, at para. 29 (CanLII)).\n\nIn short, s. 25(1) is intended to provide flexibility and a means of relief for applicants who do not fall strictly within the rules governing the admission of foreign nationals to Canada. That said, Parliament did not intend to provide relief on a routine basis. Section 25(1) was meant to operate as an exception, not the rule. C. The Approach to Evaluating H&C Applications Requires Flexibility and Stringency", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-47", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 95–96", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "As noted, s. 25(1) empowers the Minister to grant applicants relief from the requirements of the IRPA when such relief is “justified by humanitarian and compassionate considerations” (IRPA , s. 25(1) ). The Minister has described the approach immigration officers should take under s. 25(1) in the Guidelines. The Guidelines require applicants to demonstrate that denial of relief would cause them “unusual and undeserved” or “disproportionate” hardship. Though the Federal Courts have adopted this test, as I have observed, it did not originate there or in Parliament. Instead, it appeared in the Minister’s immigration manual as early as 1986.\n\nTo recapitulate, the test for H&C relief must balance the dual characteristics of stringency and flexibility. The hardship test is a good test in that it achieves the degree of stringency required to grant H&C relief. If an applicant can demonstrate “unusual and undeserved or disproportionate hardship”, he or she should be granted relief. With respect, however, the test falls down on the flexibility side. Put simply, it risks excluding or diminishing the weight that some factors may deserve in deciding whether H&C relief should be granted.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-48", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 97–98", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the Federal Court of Appeal, Stratas J.A. described the hardship test as “requiring proof that the applicant will personally suffer unusual and undeserved, or disproportionate hardship arising from the application of . . . the normal rule” (para. 41 (emphasis added)). Read literally, this test is future-oriented and focuses solely on the applicant. It asks how the applicant is likely to be affected in the future if relief is denied. As such, it runs the risk of excluding from consideration otherwise relevant H&C factors such as past hardship the applicant may have suffered or the impact that denying relief is likely to have on persons other than the applicant.\n\nThough the Guidelines direct decision makers to consider a broad range of factors such as family violence and establishment in Canada, the hardship lens might lead a decision maker to disregard these factors or give them less weight than they deserve. For example, a future-oriented analysis may not adequately account for the past hardship of sponsored spouses who leave abusive spouses or whose spouses become ineligible to sponsor them by virtue of a conviction involving domestic violence (H. Neufeld, “Inadequacies of the Humanitarian and Compassionate Procedure for Abused Immigrant Spouses” (2009), 22 J.L. & Soc. Pol’y 177, at p. 205). Likewise, a decision maker applying the hardship test literally might disregard the impact denying relief would have on other adults who are dependent on the applicant for their care and well-being (see, for example, Jacob v. Canada (Minister of Citizenship and Immigration), 2012 FC 1382, 423 F.T.R. 1, at para. 33).", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-49", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 99–101", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Neither the future-oriented analysis nor the exclusive focus on the applicant flows from the statute. Section 25(1) does not limit when the relevant H&C considerations must occur; nor does it require that they be viewed only from the applicant’s perspective. It asks only that decision makers look at H&C considerations relating to the applicant. Section 25(1) is framed in broad terms because it is impossible to foresee all situations in which it might be appropriate to grant relief to someone seeking to enter or remain in Canada. A more comprehensive approach is therefore required.\n\nGiven that s. 25(1) is intended to act as a safety valve by providing flexibility to the normal operation of the IRPA , the test should reflect the broad range of factors that may be relevant. As the Minister is empowered to grant an exceptional remedy, the test should also convey the level of intensity that those factors must reach — that is, the stringent threshold for relief.\n\nBearing in mind the purpose and context of s. 25(1), and the fact that the hardship test used to date may, in some circumstances, be overly restrictive, I would reframe the test for granting relief as follows: whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought. To be simply unacceptable, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-50", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 102–104", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "This test maintains the stringency of the hardship test — but does not exceed it. The hardship test requires applicants to demonstrate “unusual and undeserved or disproportionate” hardship. If an applicant meets the hardship test, he or she should be granted relief. To do otherwise would be simply unacceptable.\n\nAt the same time, it is more flexible than the hardship test. It asks decision makers to turn their minds to all of the relevant circumstances when deciding whether refusing relief would be “simply unacceptable”. This prevents decision makers from excluding relevant H&C considerations because they do not fit within the future-oriented hardship framework or because they do not involve hardship experienced solely by the applicant.\n\nThe “simply unacceptable” test I am proposing should not be seen as wordsmithing; nor, in my view, will it lead to more confusion than clarity. It uses concepts that are well-understood and regularly applied in Canadian law. For example, the test for whether extradition would violate s. 7 of the Canadian Charter of Rights and Freedoms “on account of the penalty which may be imposed in the requesting state” is whether the penalty would be “simply unacceptable” (Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 849). Similarly, in criminal law, abuse of process may be established where conduct would violate the community’s sense of fair play and decency (R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 41).", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-51", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 105–107", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant submits that the hardship test is too stringent and proposes that the test found in Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338, be adopted as a less stringent alternative. He argues that relief should be granted in circumstances which “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another” (Chirwa, at p. 350).\n\nMy colleague discusses the Chirwa test at length. She acknowledges that it was developed for a different decision-making context than the hardship test (para. 20), but appears to conclude nonetheless that the correct approach is to import it into s. 25(1) and apply it in conjunction with the hardship test (paras. 30-33). In her view, the requirements of the hardship test — that the hardship must be unusual and undeserved or disproportionate — should be treated as “instructive but not determinative”, so that s. 25(1) may “respond more flexibly to the equitable goals of the provision” (para. 33).\n\nWith respect, the test that my colleague proposes is amorphous. It does not provide any guidance to decision makers as to the kinds of factors outside the hardship test that would be sufficient to justify relief. Even more problematic, by introducing equitable principles, it runs the risk of watering down the stringency of the hardship test. Relief could be granted in cases which arouse strong feelings of sympathy in an individual decision maker, but which do not reach the stringent standard that the hardship test demands. Setting the bar this low is inconsistent with Parliament’s goal and risks turning s. 25(1) into an alternate immigration scheme, or an appeal mechanism for good faith but unsuccessful refugee claimants.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-52", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 108–110", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The threshold that denial of relief must, in the circumstances, be simply unacceptable to decent, fair-minded Canadians aware of the exceptional nature of H&C relief provides the appropriate mix of flexibility and stringency. Canada is a desirable place to live. It is a thriving democracy with a high standard of living, a relatively low rate of violent crime and a generous social safety net. Understandably, many people want to come to Canada, and it is natural to feel sympathy for those whose home countries do not have the same advantages. However, most decent, fair-minded Canadians aware of the exceptional nature of H&C relief would not find it simply unacceptable that we exclude individuals who do not meet our legal requirements, even if such persons evoke our sympathy and would be better off here than in their home countries.\n\nWith these thoughts in mind, I turn to the review of the Officer’s decision in this case. D. The Reasonableness of the Officer’s Decision\n\nMr. Kanthasamy submits, and my colleague agrees, that the Officer did not exercise her discretion reasonably in denying his H&C application. According to my colleague, the Officer erred in her overall approach by considering the relevant factors on a piecemeal basis and by treating the hardship test, identified in the Guidelines, as an all-inclusive “distinct legal test”, thereby fettering her discretion (para. 45). Additionally, she takes issue with certain aspects of the Officer’s reasons, maintaining that the Officer failed to properly assess several points raised by Mr. Kanthasamy.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-53", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 111–112", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "With respect, I cannot agree. In my view, the Officer’s decision falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law, and was therefore reasonable. Decision making under s. 25(1) is highly discretionary and is entitled to deference. Care must be taken not to overly dissect or parse an officer’s reasons. Rather, reasonableness review entails respectful attention to the reasons offered or which could be offered in support of a decision (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 48; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 11-12).\n\nIn particular, I am concerned that my colleague has not given the Officer’s reasons the deference which, time and again, this Court has said they deserve. In her reasons, she parses the Officer’s decision for legal errors, resolves ambiguities against the Officer, and reweighs the evidence. Lest we be accused of adopting a “do as we say, not what we do” approach to reasonableness review, this approach fails to heed the admonition in Newfoundland and Labrador Nurses — that reviewing courts must be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fatal (para. 17). As is the case with every other court, this Court has no licence to find an officer’s decision unreasonable simply because it considers the result unpalatable and would itself have come to a different result. (1) The Officer Considered the Evidence as a Whole and Did Not Fetter Her Discretion", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-54", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 113–114", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "As I have stated, to obtain H&C relief, an applicant bears the onus of demonstrating, having regard to all of the circumstances, that decent, fair-minded Canadians aware of the exceptional nature of H&C relief would find it simply unacceptable to deny the relief sought. In evaluating the application, the decision maker must not segment the evidence and require that each piece either rise above this threshold or be discounted entirely. Rather, the decision maker must fairly consider the totality of the circumstances and base the disposition on the evidence as a whole. Likewise, the decision maker must not fetter his or her discretion by applying the Guidelines — the “unusual and undeserved or disproportionate hardship” framework — as a strict legal test to the exclusion of all other factors. In my view, the Officer’s decision does not fall down on either basis.\n\nIt is true that the Officer’s reasons address each of Mr. Kanthasamy’s submissions separately, and discuss the level of hardship associated with each factor. This is not an example of improper segmentation, however, but rather an uncontroversial method of legal analysis. In fact, had the Officer failed to discuss each factor individually, and instead simply listed the facts and stated her conclusion on the evidence as a whole, this appeal might well have been before us on the basis of insufficient reasons.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-55", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 115–116", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The issue, therefore, is not whether the Officer analyzed the factors individually, but whether in doing so she failed to step back and consider the evidence as a whole. I find no such error in the Officer’s reasons. She stated that she “reviewed and considered the grounds” raised by Mr. Kanthasamy, and “considered all information and evidence regarding this application in its entirety”. In the July addendum, she listed seven additional pieces of evidence received from Mr. Kanthasamy, and stated that she “reviewed all of the evidence mentioned [therein] in conjunction with the evidence [she] previously reviewed”. It is apparent that the Officer gave careful consideration to the full record in reaching her determination.\n\nMoreover, the Officer’s use of the “unusual and undeserved or disproportionate hardship” standard to guide her analysis was entirely appropriate. As I have stated above, while the Guidelines do not establish the applicable test, the hardship analysis is neither irrelevant nor inappropriate. The degree of hardship demonstrated by the applicant is highly probative. In many cases, a hardship analysis may be dispositive. The decision maker must simply avoid applying the standard from the Guidelines in a way that fetters his or her discretion or causes relevant evidence to be improperly discounted.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-56", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 117–119", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my view, the Officer gave full and fair consideration to each of the factors supporting Mr. Kanthasamy’s application. On the issue of personalized risk, she recognized the conflicting evidence of present-day conditions in Sri Lanka, and accepted that challenges remained. She found that while some Tamils were singled out by the government, this attention was primarily focused on suspected LTTE supporters. She concluded that there was insufficient evidence that Mr. Kanthasamy would personally be discriminated against.\n\nOn the issue of establishment, the Officer accepted the evidence of Mr. Kanthasamy’s relationships with friends and relatives in Canada, his integration into his school and religious communities, and his employment. She found that his degree of establishment was “commendable”, and recognized that removal to Sri Lanka would involve some hardship. However, she concluded that his establishment in Canada — for approximately two years, and all while under a removal order — was no more than would be expected under the circumstances and was not so compelling that it justified an H&C exemption.\n\nOn the psychological evidence, the Officer expressed concern that the psychologist’s conclusions relied heavily on Mr. Kanthasamy’s own observations and explanations, which were not otherwise in the record. While the Officer ultimately accepted the medical diagnoses, she found that there was no evidence that mental health treatment would be unavailable in Sri Lanka, and therefore the psychological evidence did not establish hardship warranting H&C relief.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-57", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 120–123", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "On “the best interests of the child”, the Officer concluded that it was in Mr. Kanthasamy’s best interests to return to his immediate family in Sri Lanka. His relationships with friends and family in Canada might be weakened, but they could nonetheless be maintained even after his removal.\n\nTaken as a whole, the Officer’s decision denying Mr. Kanthasamy’s H&C application is transparent. She provided intelligible reasons for concluding that he did not meet his onus of establishing, on balance, that he should be permitted to apply for permanent residency from within Canada for H&C reasons. She did not use the hardship framework in a way that fettered her discretion or caused her to discount relevant evidence. Her conclusions are reasonable, and well-supported by the record before her.\n\nAt bottom, it was open to the Officer to find that the record did not justify relief under s. 25(1). While aspects of Mr. Kanthasamy’s situation warrant sympathy, sympathetic circumstances alone do not meet the threshold required to obtain relief. I find no error in the Officer’s approach requiring this Court’s intervention. (2) The Officer’s Analysis of the Psychological Evidence, the Risk of Discrimination, and the Best Interests of the Child\n\nMr. Kanthasamy alleges that the Officer failed to properly assess the psychological evidence, the issue of discrimination, and his best interests as a child. With respect, I disagree. As I have already indicated, decision making under s. 25(1) is entitled to deference, and in line with that approach, Mr. Kanthasamy’s arguments do not justify setting aside the Officer’s decision. (a) The Psychological Evidence", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-58", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 124–126", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Kanthasamy submits that the Officer failed to adequately consider the impact of removal on his mental health. By focusing exclusively on the availability of treatment in Sri Lanka, she discounted the evidence that his return to Sri Lanka would harm his mental health. Mr. Kanthasamy asserts that her failure to consider this aspect of the evidence rendered her decision unreasonable.\n\nI would not give effect to this submission. While I agree that the Officer’s reasons could have more fully engaged with the psychological evidence, and that it would have been helpful had she specifically addressed the issue of the impact of removal on Mr. Kanthasamy’s mental health, her failure to do so does not render her decision unreasonable.\n\nThe Officer rejected the premise underlying the psychologist’s opinion on the harm of deportation, and was therefore entitled to reject the opinion itself. The psychologist concluded that “[w]ith what seems to be a realistic and imminent threat to his safety, it is most likely that [Mr. Kanthasamy’s] condition will further deteriorate psychologically if he was to be deported from Canada” (emphasis added). The phrasing of this opinion reveals that the ultimate conclusion — that Mr. Kanthasamy’s mental health would deteriorate upon his return to Sri Lanka — is premised on the assumption that removal poses a “realistic and imminent threat to his safety”.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-59", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 127–128", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Officer rejected this underlying assumption. She found that removal would not pose a serious risk to Mr. Kanthasamy’s safety. There was sufficient evidence in the record on conditions in Sri Lanka to support this conclusion. Though she did not say so expressly, by logical implication, it was on this basis that she rejected the psychologist’s opinion as to the impact of removal on Mr. Kanthasamy’s mental health. Immigration officers must be allowed to evaluate an expert’s assumptions in the context of the other evidence. If a report rests on an assumption that is contradicted by other evidence, decision makers must be entitled to reject or give little weight to that report’s conclusions.\n\nIt bears repeating that reasonableness review requires this Court to give respectful attention to the reasons which, though not stated, could have been offered in support of a decision. This point is emphatically made in Newfoundland and Labrador Nurses, where the Court stressed that “even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them” (para. 12, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304). The fact that the Officer did not explicitly set out this aspect of her reasoning does not render her decision unreasonable.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-60", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 129–131", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "My colleague takes issue with the Officer’s comment that Mr. Kanthasamy provided insufficient evidence that he had received or was receiving treatment in Canada for his psychological condition. She says that once the Officer accepted the diagnosis, “requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor” (para. 47).\n\nWith respect, I disagree. There was no evidence before the Officer that Mr. Kanthasamy ever sought treatment in Canada. The Officer’s comments on this point do not amount to questioning the diagnosis. Instead, they support her conclusion that removal from Canada would not meet the hardship test since no existing course of treatment would be interrupted. I fail to see how losing access to a service which Mr. Kanthasamy never attempted to access can be viewed as a hardship. This is especially so given the Officer’s further finding that he could receive treatment in Sri Lanka.\n\nIn my view, there are two ways in which Mr. Kanthasamy’s mental health could give rise to hardship: either because returning him to Sri Lanka would aggravate his condition, or because it would affect his treatment, by interrupting an existing course of treatment or by precluding access to treatment altogether. The Officer, on the basis of the record before her, found that neither situation existed. In this context, asking for evidence regarding treatment did not improperly change the diagnosis from a “significant” to a “conditional” factor. The significance of the diagnosis always depended on the hardship that removal would cause. (b) Personalized Risk of Discrimination", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-61", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 132–133", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Kanthasamy submits that the Officer’s approach to the issue of discrimination was flawed. After noting the effect of s. 25(1.3), the Officer stated that “the onus remains on the applicant to demonstrate that these country conditions would affect him personally”. Mr. Kanthasamy asserts that it was a legal error for the Officer to require evidence that he would be personally targeted by discriminatory action. Rather, he submits that she should have considered more generally whether his profile as a young Tamil male from northern Sri Lanka would subject him to a risk of discriminatory mistreatment.\n\nWhile the Officer’s reasons could perhaps have been more clearly articulated, I do not share the view that her approach to the issue of discrimination was unreasonable, nor that it rendered her decision unreasonable. With respect to the effect of s. 25(1.3), the Officer’s approach is consistent with that set out by Stratas J.A., which I have endorsed. The Officer’s statement that she had “not considered the applicant’s risk” in the context of the refugee and PRRA factors must not be overly parsed or dissected. She engaged with the evidence relating to the treatment of Tamil males in northern Sri Lanka and analyzed it through the lens of the criteria for granting H&C relief. This approach was reasonable and did not lead her to disregard any relevant evidence.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-62", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 134–135", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "On the issue of personalized risk of discrimination, I agree with my colleague that an applicant need not produce direct evidence showing that discrimination against the applicant himself or herself had occurred or would necessarily occur. Whether in the context of an H&C application, the PRRA process or a refugee claim, certainties are rare. The applicant need only show that the denial of relief would pose a certain risk of harm.\n\nHowever, that risk must necessarily be a “personalized risk”, in the sense that the applicant must fall within the category of people who, on the evidence submitted, would face that risk. For example, in order to establish the harm of removal to a country where discrimination against a certain ethnic minority was alleged, the applicant would need to establish not only that this discrimination was ongoing and sufficiently severe, but also that he or she was a member (or would be perceived to be a member) of the group facing discrimination.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-63", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 136–137", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Officer accepted that the conditions in Sri Lanka posed some risk of discrimination to certain subsets of the Tamil population, but concluded that government harassment and surveillance was focused on those suspected of being LTTE supporters. The Officer impliedly concluded that Mr. Kanthasamy was not suspected of being an LTTE supporter. She also noted that the government had attempted to improve the situation for Tamils. As a result, she found there was insufficient evidence that he would be personally targeted or personally discriminated against. This conclusion was open to her on the record. Though, as my colleague notes, the Officer was permitted to draw inferences from the experiences of other Tamils in order to find a personalized risk of discrimination, the record did not require that she draw that inference here.\n\nI note that on this point, the Officer’s conclusion largely mirrors the finding made on Mr. Kanthasamy’s refugee claim, which he enclosed with his H&C submissions. In that decision, while the Immigration and Refugee Board accepted Mr. Kanthasamy’s description of the two incidents of arrest and detention, it noted that “[t]here were no conditions placed on the claimant before he was released by the army or the police after they had questioned him”, and concluded that “[neither] the police [nor] the army would have released the claimant in the manner described” had they suspected Mr. Kanthasamy of LTTE support or sympathy. The refugee claim was rejected because “on a balance of probabilities . . . [Mr. Kanthasamy’s] profile is not one that would particularly attract any undue attention or reprisal . . . if he returns to his family in Sri Lanka”.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-64", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 138–140", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "In reaching a similar conclusion in evaluating his H&C application, the Officer arrived at a reasonable result that was supported by the record. Reviewing judges ought not to parse a decision maker’s word choices in “a line-by-line treasure hunt for error” (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 54). The Officer’s reasons must be viewed in the context of the record as a whole, including Mr. Kanthasamy’s submissions. Before the Officer, Mr. Kanthasamy submitted that he “has been personally affected by discrimination . . . and will continue to be so affected” (emphasis added). When viewed in context, the Officer’s conclusion that Mr. Kanthasamy had “failed to provide sufficient evidence to support his statements that he will be personally discriminated against” simply reiterated the wording of his submissions. The Officer’s word choice is not determinative. It is her reasoning that counts. I find nothing in her analysis on the issue of discrimination that warrants this Court’s intervention. (c) Mr. Kanthasamy’s Best Interests as a Child\n\nMr. Kanthasamy submits that the Officer’s analysis of his best interests as a child was superficial and that she failed to give adequate weight to his status as a child.\n\nAgain, I accept that the Officer’s reasons could have been more expansive on this point. However, in my view, both her analysis and conclusion on Mr. Kanthasamy’s best interests as a child were reasonable.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-65", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 141–143", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the context of Mr. Kanthasamy’s application, it was highly relevant that he was one day away from turning 18 when he initially applied for H&C relief. Mr. Kanthasamy was not a young child, born in Canada, facing the prospect of his parents’ deportation and being left here without support. He was a teenager on the verge of adulthood. Removal would reunite him with his parents and siblings in Sri Lanka.\n\nThe Officer considered factors unique to Mr. Kanthasamy’s status as a child, including friendships forged during his teenage years in Canada and his efforts at completing high school. She found that removal to Sri Lanka would not necessarily bring an end to these friendships. She was also unpersuaded that he “would be unable to attend school . . . upon his return to Sri Lanka”. In the totality of his circumstances, she concluded that it was in Mr. Kanthasamy’s best interests as a child to return to the support and care of his immediate family in Sri Lanka.\n\nOn the record before her, it was open to the Officer to conclude that removal to Sri Lanka would not impair Mr. Kanthasamy’s best interests, because he would be returning to his immediate family rather than being separated from them. The Officer was obliged to be “alert, alive and sensitive” to the best interests of the child factor (Baker, at para. 75). In my view, her reasons demonstrate that she was, and I see no basis to disturb her findings on this issue. V. Conclusion", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-15665-66", + "doc_type": "caselaw", + "act_code": "2015 SCC 61", + "act_short": "Kanthasamy", + "act_name": "Kanthasamy v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61", + "marginal_note": "paras 144–146", + "heading": "Humanitarian and compassionate relief under IRPA s. 25; the best interests of a child", + "part": "Supreme Court of Canada", + "division": "", + "text": "As I have explained, the test for granting relief under s. 25(1) is not the “unusual and undeserved or disproportionate hardship” test set out in the Guidelines. Nonetheless, the Guidelines remain relevant. They can continue to serve their original purpose — describing the majority of situations appropriate for relief — and can be applied in a way that does not fetter the discretion of immigration officers.\n\nThe Officer here used the hardship framework to guide her analysis. Had she applied the test that I have outlined — whether, having regard to all of the circumstances, decent, fair-minded Canadians aware of the exceptional nature of H&C relief would find it simply unacceptable to deny the relief sought — she would inevitably have reached the same conclusion.\n\nThe Officer’s decision to deny an exemption to Mr. Kanthasamy was reasonable. Although she separately analyzed each factor raised in support of his application, she did not improperly discount the cumulative weight of each factor. Rather, after analyzing each piece of evidence in detail, she reached a conclusion which was grounded in Mr. Kanthasamy’s circumstances as a whole. Although she applied the hardship standard from the Guidelines, she did not do so in a way that fettered her discretion. Accordingly, I would dismiss Mr. Kanthasamy’s appeal, and affirm the Officer’s decision to deny his H&C application. Appeal allowed with costs, Moldaver and Wagner JJ. dissenting.", + "current_to": "2015-12-10", + "last_amended": "", + "history": "Also reported: [2015] 3 SCR 909", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" + }, + { + "id": "scc-13137-1", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 1–2", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant, Muhsen Ahmed Ramadan Agraira, a citizen of Libya, has been residing in Canada continuously since 1997, despite having been found to be inadmissible on security grounds in 2002. The finding of inadmissibility was based on the appellant’s membership in the Libyan National Salvation Front (“LNSF”) — a terrorist organization according to Citizenship and Immigration Canada (“CIC”). The appellant applied in 2002 under s. 34(2) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), for ministerial relief from the determination of inadmissibility, but his application was denied in 2009. The Minister of Public Safety and Emergency Preparedness (“Minister”) concluded that it was not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations. The appellant’s application for permanent residence was accordingly denied, and he is now at risk of deportation.\n\nMr. Agraira appeals to this Court from a decision in which the Federal Court of Appeal dismissed an application for judicial review of the Minister’s decision denying relief from the determination of inadmissibility. He contends that the Minister took an overly narrow view of the term “national interest” in s. 34(2) of the IRPA by equating it with national security and public safety. He adds that the Minister’s decision failed to meet his legitimate expectations that certain procedures would be followed and certain factors would be taken into account in determining his application for relief.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-2", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 3–5", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The question raised by this appeal is whether the Minister’s decision to deny relief can be successfully challenged. Two central issues are raised. First, what is the appropriate standard of review to apply to the Minister’s decision? Second, in light of this standard, should the Minister’s decision be set aside? This appeal also raises two other issues incidental to these central issues, namely the interpretation of the term “national interest” in s. 34(2) of the IRPA and the impact of any legitimate expectations created by Chapter 10 of CIC’s Inland Processing Operational Manual: “Refusal of National Security Cases/Processing of National Interest Requests” (the “Guidelines”).\n\nI agree with the Federal Court of Appeal, but for reasons differing in part, that the Minister’s decision was reasonable and that the application for judicial review should be dismissed. II. Background\n\nThe appellant left Libya in 1996. He first sought refugee status in Germany on the basis of his connection with the LNSF, but his application was denied. He entered Canada in 1997, at Toronto, using a fake Italian passport. He applied for Convention Refugee status in this country on the basis of his affiliation with the LNSF. On his personal information form, he described his activities with that organization as follows: as a member of an 11-person cell, he had delivered envelopes to members of other cells, raised funds, and watched the movements of supporters of the regime then in power. As part of his training, he was taught how to engage people in political discourse and how to raise funds.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-3", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 6–8", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant was heard by the Convention Refugee Determination Division of the Immigration and Refugee Board. At the hearing, he provided a letter from the LNSF confirming his membership in that organization. On October 24, 1998, he was denied Convention Refugee status on the basis that he lacked credibility.\n\nWhile his application for refugee status was pending, the appellant married a Canadian woman in a religious ceremony in December 1997. He later married her in a civil ceremony in March 1999. His wife sponsored his application for permanent residence in August 1999.\n\nIn May 2002, the appellant was advised by CIC that his application for permanent residence might be refused, because there were grounds to believe that he was or had been a member of an organization that was or had been engaged in terrorism, contrary to s. 19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985, c. I-2 (“IA”), which was then in force.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-4", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 9", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Later in May 2002, the appellant was interviewed by an immigration officer. In the course of that interview, he confirmed that he had been a member of the LNSF, but claimed that he had previously exaggerated the extent of his involvement in order to bolster his refugee claim. Although he now claimed that he did not know very much about the LNSF, he was able to name its founder and its current leader. Also, after stating that he had attended LNSF meetings in Libya, he said that he had only discussed the group with friends. Finally, he stated that he had had no contact with the LNSF after leaving Libya, but then acknowledged having received newsletters from chapters in the United States since that time. These contradictions led the immigration officer to conclude that the appellant was or had been a member of an organization that engaged in terrorism. He was found to be inadmissible on that basis.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-5", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 10–11", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "On May 22, 2002, CIC sent the appellant a letter advising him of the possibility of requesting ministerial relief. In July of that year, the appellant applied for that relief. The immigration officer noted, while preparing her report on the interview, that, once again, there were statements in the appellant’s application for relief that contradicted earlier statements he had made. For example, the appellant indicated in this application that he had attended meetings of the LNSF at which he had been trained to approach potential members and raise funds. However, in his interview with the immigration officer, the appellant said that he was unaware how the LNSF funded itself or how it recruited members. The officer concluded that the appellant had been and continued to be a member of the LNSF, but that his involvement had been limited to distributing leaflets and enlisting support for the organization. She therefore recommended that he be granted relief.\n\nAt the same time (July 2002), the officer prepared a Report on Inadmissibility regarding the appellant under s. 44(1) of the IRPA . Her report indicated that he was inadmissible to Canada pursuant to s. 34(1) (f) of the IRPA because he was a member of a terrorist organization.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-6", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 12", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Next, in August 2005, a briefing note for the Minister was prepared by the Canada Border Services Agency (“CBSA”). After having been reviewed by counsel for the appellant, who made no further comment, the note was submitted to the Minister on March 9, 2006. It contained a recommendation that the appellant be granted relief, as there was “not enough evidence to conclude that Mr. Ramadan Agraira’s continued presence in Canada would be detrimental to the national interest” (A.R., vol. I, at p. 9). This recommendation was based on the following considerations: Mr. Ramadan Agraira admitted to joining the LNSF but was only a member for approximately two years. There is some information to suggest that he became a member at a time when the organization was not in its most active phase and well after it was involved in an operation to overthrow the Libyan regime. He initially stated that he had participated in a number of activities on behalf of the organization but later indicated that he had exaggerated the extent of his involvement so that he could make a stronger claim to refugee status in Canada. This is supported to some extent by the fact that his attempts to obtain refugee status in Germany and Canada were rejected on the basis of credibility. Mr. Ramadan Agraira denied having been involved in any acts of violence or terrorism and there is no evidence to the contrary. He appears to have been a regular member who did not occupy a position of trust or authority within the LNSF. He does not appear to have been totally committed to the LNSF specifically as he indicated to the immigration officer at CIC Oshawa that he would support anyone who tried to remove the current regime in Libya through non-violent means. [A.R., vol. I, at p. 9]", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-7", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 13–14", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "On January 27, 2009, the Minister rejected the recommendation in the briefing note. The response he gave was as follows: After having reviewed and considered the material and evidence submitted in its entirety as well as specifically considering these issues: • The applicant offered contradictory and inconsistent accounts of his involvement with the Libyan National Salvation Front (LNSF). • There is clear evidence that the LNSF is a group that has engaged in terrorism and has used terrorist violence in attempts to overthrow a government. • There is evidence that LNSF has been aligned at various times with Libyan Islamic opposition groups that have links to Al-Qaeda. • It is difficult to believe that the applicant, who in interviews with officials indicated at one point that he belonged to a “cell” of the LNSF which operated to recruit and raise funds for LNSF, was unaware of the LNSF’s previous activity. It is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations. Ministerial relief is denied. [A.R., vol. I, at p. 11]\n\nOn March 24, 2009, the appellant received notice that his application for permanent residence was denied. He then applied to the Federal Court for judicial review of the Minister’s decision regarding relief. III. Judicial History A. Federal Court, 2009 FC 1302, 357 F.T.R. 246", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-8", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 15–16", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mosley J. began his analysis by ruling on the standard of review. He held that the appropriate standard was reasonableness, citing the discretionary nature of the decision, the fact that it was not delegable, and the Minister’s expertise in matters of national security and the national interest. He added that the political nature of the decision and the Minister’s special knowledge involving sensitivity to the imperatives of public policy and the nuances of the legislative scheme also weighed in favour of deference.\n\nIn applying the reasonableness standard, Mosley J. considered the fact that the Minister had focused on evidence that the LNSF had engaged in terrorism and been aligned with Libyan Islamic groups that had links to Al-Qaeda. He found, on the contrary, that the evidence of the LNSF’s engagement in terrorism was minimal at best. In particular, the LNSF did not appear on the lists of terrorist organizations of the United Nations, Canada and the United States. Although several Libyan opposition groups had direct links with Al-Qaeda, there was no evidence in the record that LNSF was one of them. Because it had been previously determined that the LNSF was a terrorist group for the purposes of s. 34(1) (f) of the IRPA , the court could not review that finding. However, Mosley J. found it difficult to understand why the Minister had given so much weight to the LNSF’s engagement in terrorism and its alignment with Libyan Islamic groups that had links to Al-Qaeda.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-9", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 17", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mosley J. then referred to the Federal Court’s decision in Abdella v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 1199, 355 F.T.R. 86, in which Gibson J. had relied on the Guidelines to set aside the Minister’s decision to deny relief under s. 34(2). Appendix D to the Guidelines contains five questions to be addressed in the context of an application for such relief: 1. Will the applicant’s presence in Canada be offensive to the Canadian public? 2. Have all ties with the regime/organization been completely severed? 3. Is there any indication that the applicant might be benefiting from assets obtained while a member of the organization? 4. Is there any indication that the applicant might be benefiting from previous membership in the regime/organization? 5. Has the person adopted the democratic values of Canadian society?", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-10", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 18", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mosley J. noted that in the instant case, the Minister had not addressed these questions in the reasons he gave for his decision, nor had he balanced the factors the Federal Court had in past cases identified as being relevant to the determination of what is in the national interest, namely: whether the appellant posed a threat to Canada’s security; whether the appellant posed a danger to the public; the period of time the appellant had been in Canada; whether the determination is consistent with Canada’s humanitarian reputation of allowing permanent residents to settle in Canada; the impact on both the appellant and all other members of society of the denial of permanent residence; and adherence to all Canada’s international obligations. He criticized the Minister for not considering in his decision the facts that the appellant had been residing in Canada since 1997 and had been a productive member of society, that he had no criminal record, and that he owned a business earning over $100,000 a year. In Mosley J.’s view, the exercise of the Minister’s discretion seemed to have been rendered meaningless by the Minister’s “simplistic view that the presence in Canada of someone who at some time in the past may have belonged to a terrorist organization abroad can never be in the national interest” (para. 27).", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-11", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 19–21", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mosley J. granted the application for judicial review and certified the following questions for consideration by the Federal Court of Appeal: When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest? Specifically, must the Minister consider the five factors listed in the Appendix D of IP 10? [para. 32] B. Federal Court of Appeal, 2011 FCA 103, 415 N.R. 121\n\nIn the Federal Court of Appeal, Pelletier J.A. (Blais C.J. and Noël J.A. concurring) considered the issues separately in ruling on the standard of review. He held that establishing the meaning of the term “national interest” for the purposes of s. 34(2) is a question of law in respect of which the Minister has no particular expertise and for which the appropriate standard is therefore correctness. The appropriate standard for reviewing the exercise of the Minister’s discretion, on the other hand, is reasonableness.\n\nPelletier J.A. confirmed that, in an application for ministerial relief, the onus is on the applicant to satisfy the Minister that his or her presence in Canada would not be detrimental to the national interest. Because this onus was reversed in the briefing note, he held that it was open to the Minister to disregard the recommendation made in the note.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-12", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 22–23", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Pelletier J.A. next turned to the interpretation of s. 34(2) of the IRPA . He tracked the legislative evolution of s. 34(2) to find what, in his view, was the correct interpretation of this subsection. He noted that Parliament had transferred the responsibility for exercising the discretion from the Minister of Citizenship and Immigration (“MCI”) to the Minister. As a result of this change, s. 34(2) has to be read in light of the objects of the Department of Public Safety and Emergency Preparedness Act , S.C. 2005, c. 10 (“DPSEPA ”) (the Minister’s enabling statute), the Canada Border Services Agency Act , S.C. 2005, c. 38 (“CBSAA ”) (the statute governing the CBSA, the organization that assists the Minister in his or her duties), and the IRPA . These statutes work together as part of a statutory scheme to which the presumption of coherence must be applied.\n\nIn May 2002, when the appellant’s admissibility interview took place, the IA was in force. Under the IA, the MCI was responsible both for the determination of inadmissibility and for the decision on granting relief. He or she was also responsible for deciding whether to grant exemptions from the IA on humanitarian and compassionate (“H&C”) grounds.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-13", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 24–25", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "On June 28, 2002, the IRPA replaced the IA. Under the transitional provisions of the IRPA , the appellant’s application for relief would now be governed by the IRPA , and more specifically by s. 34 of that Act. At that time, the MCI was still responsible for deciding whether to grant relief under s. 34(2). After the CBSAA was passed in 2005, the responsible minister became “[t]he Minister as defined in section 2 ” of the CBSAA (IRPA , s. 4(2) , repl. by S.C. 2005, c. 38, s. 118 ). In 2008, the Minister was specifically identified as the responsible minister. The MCI retained the ability to grant exemptions from the IRPA on H&C grounds.\n\nThis review led Pelletier J.A. to conclude that under the statutory scheme, the Minister was responsible for deciding whether to grant relief, whereas the MCI continued to be responsible for deciding whether to grant exemptions on the basis of H&C considerations. Hence, Parliament intended that ministerial relief would be granted or denied on the basis of considerations other than those that could support an application for H&C relief. The proper procedure for making an application based on H&C considerations is that under s. 25 of the IRPA , not that of an application for ministerial relief under s. 34(2).", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-14", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 26–27", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Pelletier J.A. then equated the “national interest”, for the purposes of s. 34(2), with national security and public safety. He found support for this proposition in the DPSEPA and the CBSAA. The DPSEPA emphasizes the Minister’s responsibility for public safety and emergency preparedness. Under the CBSAA, the Minister is also responsible for the CBSA, whose purpose is, inter alia, to provide “integrated border services that support national security and public safety priorities” (CBSAA , s. 5 ). Pelletier J.A. found that this statutory scheme supports the view that the exercise of the Minister’s discretion under s. 34(2) must be primarily, if not exclusively, guided by his or her national security and public safety role.\n\nPelletier J.A. next considered the effect of the Guidelines, in which the following definition of the term “national interest” appears: “The consideration of national interest involves the assessment and balancing of all factors pertaining to the applicant’s admission against the stated objectives of the Act as well as Canada’s domestic and international interests and obligations” (s. 6).", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-15", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 28–29", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Pelletier J.A. noted that the Guidelines cannot alter the law as enacted by Parliament and found that they are of limited application now that the Minister, as opposed to the MCI, has become responsible for decisions on granting ministerial relief under s. 34(2). This conclusion was based on s. 4(2) (c) of the IRPA , which provides that the Minister is responsible for the establishment of policies regarding “inadmissibility on grounds of security”. As a consequence, the five factors set out in the Guidelines need not be considered in disposing of relief applications. For Pelletier J.A., this Court’s dictum in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 72, to the effect that guidelines are “a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section” does not apply in the case of the Guidelines. This is because the Guidelines serve to identify foreign nationals whose presence in Canada would be detrimental to the national interest, and thus to eliminate unsuitable candidates for relief. They do not serve, as was the case in Baker, to identify suitable candidates for relief.\n\nPelletier J.A. then went on to hold that the fact that a finding of inadmissibility under s. 34(1) might negate the possibility of relief under s. 34(2) does not render that relief illusory. Rather, on the basis of Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, the relief under s. 34(2) was meant to apply only in exceptional cases in which the applicant’s association with a terrorist group was innocent or coerced.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-16", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 30–32", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, Pelletier J.A. concluded that the Minister’s decision was reasonable. The Minister had addressed the appellant’s submission that his involvement with the LNSF was either non-existent, innocent or trivial and had found the appellant’s account of his involvement to be “contradictory and inconsistent” (para. 69). Ultimately, because the appellant lacked credibility as a result of these contradictions and inconsistencies, the Minister had had no faith in any of his representations. Accordingly, the Minister had not acted unreasonably in reaching the conclusion he had. The application for judicial review was dismissed, and the certified questions were answered as follows: 1- When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest? Answer: National security and public safety, as set out in para. 50 of these reasons. 2- Specifically, must the Minister consider the five factors listed in the Appendix D of IP10? Answer: No. [para. 74] IV. Analysis A. Issues\n\nThe issues to be resolved in this appeal are as follows: (1) Is the standard of review for the Minister’s decision reasonableness or correctness? (2) Is the Minister’s decision valid? (3) Was the decision unfair, and did it fail to meet the appellant’s legitimate expectations?\n\nAs I mentioned above, a corollary issue related to the first and second issues is the meaning of the term “national interest” in s. 34(2) of the IRPA . B. Positions of the Parties (1) Position of the Appellant", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-17", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 33–34", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant submits that the standard of review applicable to all the issues before this Court is correctness, because they all constitute questions of pure law and natural justice. The Minister’s decision was incorrect in that it was based on an erroneous view of the meaning of the term “national interest” in s. 34(2) of the IRPA and it failed to meet the appellant’s legitimate expectations as to what factors would be considered in assessing his application for relief.\n\nThe appellant contends that the Federal Court of Appeal relied too heavily on the legislative transfer of ministerial responsibility in interpreting the term “national interest” for the purposes of s. 34(2). This shift in responsibility between governmental departments does not indicate a concomitant legislative intent to change the interpretation of the IRPA . He also argues that the term “national interest” should be given a broader meaning than the one ascribed to it by the Federal Court of Appeal. Although public security and national defence should both be taken into account as relevant factors in the Minister’s exercise of discretion, they should not be the only factors considered in applying the “national interest” test. In taking an unduly narrow view of the term “national interest” by equating it with one aspect of that interest (national security and public safety), the Federal Court of Appeal set a precedent which unlawfully fetters the Minister’s discretion by requiring that he or she consider only that one aspect when dealing with future applications for relief.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-18", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 35", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, the appellant submits that the Minister’s decision was unfair in that it failed to meet legitimate expectations created by the Guidelines. The Guidelines were clear and unambiguous representations made by the government to the public inasmuch as they were publicly available, had been routinely used by the Minister, and had been issued to ensure consistency. They created an expectation that certain factors extrinsic to national security would be considered in assessing s. 34(2) applications by instructing applicants to address, inter alia, the following factors in their submissions: the reason why the applicant is seeking admission to Canada, any special circumstances related to the application, and any current activities in which the applicant is involved. The appellant further contends that a letter he received from CIC in May 2002 created a legitimate expectation that H&C factors would be considered in assessing his application for relief. It stated that a decision under s. 34(2) would require the Minister to assess both the detriment the appellant posed to the national interest of Canada and any H&C circumstances pertinent to his situation. According to the appellant, this legitimate expectation was not met, because the Minister did not, in assessing his application, consider the factors he had been told were relevant. (2) Position of the Respondent", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-19", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 36–37", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The respondent submits that the standard of review is reasonableness and that the Minister’s decision was reasonable. The Minister’s interpretation of the term “national interest” is entitled to deference, as the IRPA does not specify any factors that must be considered in this regard, and the term is found in the Minister’s enabling statute, with which the Minister has particular familiarity. A decision on an application for relief under s. 34(2) falls at the political end of the spectrum, is discretionary, and concerns matters in which the Minister has expertise.\n\nAccording to the respondent, the legislative history of the IRPA and the related legislation supports the view that the national security and public safety aspects of the national interest are to be the predominant considerations in determining whether to grant s. 34(2) relief, but these remain subject to any other considerations the Minister deems appropriate, except for H&C factors. The purpose of s. 34 is to ensure the safety and security of Canadians, while s. 34(2) provides for relief for innocent or coerced members of terrorist organizations who would otherwise be inadmissible. Section 34(2) must be seen as complementary to s. 34(1). Since s. 34(1) deals with inadmissibility on security grounds, the dominant considerations under s. 34(2) must be national security and public safety. H&C factors are not relevant to a determination of the “national interest” under s. 34(2), as they are properly dealt with in H&C applications under s. 25 of the IRPA . This interpretation of s. 34(2) is bolstered by the legislative transfer of responsibility for decisions on applications for relief to the Minister, whose mandate is the protection of public safety.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-20", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 38", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Ultimately, the respondent argues, the Minister’s decision in this case was reasonable. It was transparent, intelligible and justifiable. It also fell within the range of possible acceptable outcomes that meet the standard of reasonableness in accordance with Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The appellant had offered self-serving and contradictory explanations of his role in, and activities for, the LNSF, and therefore lacked credibility. It was also clear that he had had sustained contact with a group that had committed terrorist acts.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-21", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 39", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The respondent also contends that there was no failure to meet legitimate expectations in this case. The Guidelines emphasize the exceptional and discretionary nature of ministerial relief, and their stated objectives emphasize national security and public safety. They created expectations with respect to procedures, but not to substantive rights. They could not alter the law as laid down by Parliament and so could not mandate the consideration of factors not relevant to the national interest analysis. In any event, immigration officials did follow the procedures they were expected to follow in this case. A letter sent from CIC to the appellant in May 2002 stated that the ministerial relief process would require an assessment of the detriment he posed to the national interest, and of any relevant H&C circumstances. The appellant had a sufficient opportunity to present evidence and submissions in support of his case. He was then provided with a further opportunity to respond to information officials had obtained and provided to the Minister. The Minister reviewed the application and the briefing note, and exercised his statutory discretion as he saw fit. He provided sufficient reasons for his decision, in which he indicated that he had “reviewed and considered the material and evidence submitted in its entirety”. C. Forms of Ministerial Relief (1) Sections 25 and 25.1 of the IRPA", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-22", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 40", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Before I turn to the Minister’s decision, it will be helpful to explain the two forms of ministerial relief currently available to foreign nationals in Canada who are deemed to be inadmissible. The first form, H&C relief, is provided for in ss. 25 and 25.1 of the IRPA : 25. (1) Subject to subsection (1.2), the [MCI] must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the [MCI] is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. . . . 25.1 (1) The [MCI] may, on the [MCI’s] own initiative, examine the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the [MCI] is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-23", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 41", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "These provisions contemplate the granting of ministerial relief to foreign nationals seeking permanent resident status who are inadmissible or otherwise do not meet the requirements of the IRPA . Under them, the MCI may, either upon request or of his own accord, “grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of” the IRPA . However, relief of this nature will only be granted if the MCI “is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national”. H&C considerations include such matters as children’s rights, needs, and best interests; maintaining connections between family members; and averting the hardship a person would suffer on being sent to a place where he or she has no connections (see Baker, at paras. 67 and 72). (2) Section 34(2) of the IRPA", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-24", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 42", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 34(2) of the IRPA contemplates a different form of ministerial relief based upon the “national interest”. Section 34 reads as follows: 34. (1) [Security] A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; (b) engaging in or instigating the subversion by force of any government; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). (2) [Exception] The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-25", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 43–44", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "As I mentioned above, the appellant was found to be inadmissible on security grounds for having been, in the words of s. 34(1)(f), “a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph . . . (c)”, namely acts of terrorism. He sought relief under s. 34(2), which provides that the Minister may make an exception where a person has been found to be inadmissible, on being satisfied that the person’s continued “presence in Canada would not be detrimental to the national interest”. As the wording of the section (“who satisfies the Minister”) implies, the onus is on the person who applies for relief to prove that his or her continued presence in Canada would not be detrimental to the national interest.\n\nIn short, s. 34(2) of the IRPA establishes a pathway for relief which is conceptually and procedurally distinct from the relief available under s. 25 or s. 25.1. It should be borne in mind that an applicant who fails to satisfy the Minister that his or her continued presence in Canada would not be detrimental to the national interest under s. 34(2) may still bring an application for H&C relief. Whether such an application would be successful is another matter. D. Standard of Review (1) Relationship Between the Administrative Law Standards of Review and the Appellate Standards of Review", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-26", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 45–47", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The first issue in this appeal concerns the standard of review applicable to the Minister’s decision. But, before I discuss the appropriate standard of review, it will be helpful to consider once more the interplay between (1) the appellate standards of correctness and palpable and overriding error and (2) the administrative law standards of correctness and reasonableness. These standards should not be confused with one another in an appeal to a court of appeal from a judgment of a superior court on an application for judicial review of an administrative decision. The proper approach to this issue was set out by the Federal Court of Appeal in Telfer v. Canada Revenue Agency, 2009 FCA 23, 386 N.R. 212, at para. 18: Despite some earlier confusion, there is now ample authority for the proposition that, on an appeal from a decision disposing of an application for judicial review, the question for the appellate court to decide is simply whether the court below identified the appropriate standard of review and applied it correctly. The appellate court is not restricted to asking whether the first-level court committed a palpable and overriding error in its application of the appropriate standard.\n\nIn Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247, Deschamps J. aptly described this process as “‘step[ping] into the shoes’ of the lower court” such that the “appellate court’s focus is, in effect, on the administrative decision” (emphasis deleted).\n\nThe issue for our consideration can thus be summarized as follows: Did the application judge choose the correct standard of review and apply it properly? (2) What Is the Standard of Review?", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-27", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 48", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "As this Court held in Dunsmuir, a court deciding an application for judicial review must engage in a two-step process to identify the proper standard of review. First, it must consider whether the level of deference to be accorded with regard to the type of question raised on the application has been established satisfactorily in the jurisprudence. The second inquiry becomes relevant if the first is unfruitful or if the relevant precedents appear to be inconsistent with recent developments in the common law principles of judicial review. At this second stage, the court performs a full analysis in order to determine what the applicable standard is. Determination of the Standard in Light of the Jurisprudence", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-28", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 49", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my view, the standard of review applicable in the case at bar has been satisfactorily determined in past decisions to be reasonableness. A host of cases from the Federal Court indicate that reasonableness is the standard for reviewing decisions on applications for ministerial relief under s. 34(2) of the IRPA : Esmaeili-Tarki v. Canada (Minister of Citizenship and Immigration), 2005 FC 509 (CanLII); Miller v. Canada (Solicitor General), 2006 FC 912, [2007] 3 F.C.R. 438; Naeem v. Canada (Minister of Citizenship and Immigration), 2007 FC 123, [2007] 4 F.C.R. 658; Al Yamani v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 381, 311 F.T.R. 193; Soe v. Canada (Public Safety and Emergency Preparedness), 2007 FC 461 (CanLII); Kanaan v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 241, 71 Imm. L.R. (3d) 63; Chogolzadeh v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 405, 327 F.T.R. 39; Tameh v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 884, 332 F.T.R. 158; Kablawi v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 1011, 333 F.T.R. 300; Ramadan v. Canada (Minister of Citizenship and Immigration), 2008 FC 1155, 335 F.T.R. 227; Afridi v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 1192, 75 Imm. L.R. (3d) 291; Ismeal v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 1366, 77 Imm. L.R. (3d) 310; Abdella. This jurisprudence is well established, and the appellant has not shown why it should not be relied on in this appeal.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-29", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 50–51", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The applicability of the reasonableness standard can be confirmed by following the approach discussed in Dunsmuir. As this Court noted in that case, at para. 53, “[w]here the question is one of fact, discretion or policy, deference will usually apply automatically”. Since a decision by the Minister under s. 34(2) is discretionary, the deferential standard of reasonableness applies. Also, because such a decision involves the interpretation of the term “national interest” in s. 34(2), it may be said that it involves a decision maker “interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (Dunsmuir, at para. 54). This factor, too, confirms that the applicable standard is reasonableness. (3) Meaning of Reasonableness\n\nIn Dunsmuir, the Court defined reasonableness as follows: . . . a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47]", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-30", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 52", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, Abella J., for a unanimous Court, returned to the meaning of reasonableness and deference. She stated: This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for “justification, transparency and intelligibility”. To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist. . . . Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §§12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47). In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48).", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-31", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 52–54", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. . . . if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [paras. 13-16]\n\nIn one of its most recent comments on this point, in Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, the Court emphasized that the reviewing court must consider the tribunal’s decision as a whole, in the context of the underlying record, to determine whether it was reasonable: . . . administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708). [para. 3]\n\nI will now consider whether the Minister’s decision was reasonable. The remainder of my reasons will focus on this issue. E. Meaning of “National Interest” Under Section 34(2) of the IRPA", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-32", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 55–57", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The meaning of the term “national interest” in s. 34(2) of the IRPA was central to the Minister’s exercise of discretion in this case. As is plain from the statute, the Minister exercises this discretion by determining whether he or she is satisfied by the applicant that the applicant’s presence in Canada would not be detrimental to the national interest. The meaning of “national interest” in the context of this section is accordingly key, as it defines the standard the Minister must apply to assess the effect of the applicant’s presence in Canada in order to exercise his or her discretion.\n\nThe Minister, in making his decision with respect to the appellant, did not expressly define the term “national interest”. The first attempt at expressly defining it was by Mosley J. in the Federal Court, and he also certified a question concerning this definition for the Federal Court of Appeal’s consideration. We are therefore left in the position, on this issue, of having no express decision of an administrative decision maker to review.\n\nThis Court has already encountered and addressed this situation, albeit in a different context, in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. In that case, Rothstein J. held that a decision maker’s decision on the merits may imply a particular interpretation of the statutory provision at issue even if the decision maker has not expressed an opinion on that provision’s meaning.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-33", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 58", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The reasoning from Alberta Teachers’ Association can be applied to the case at bar. It is evident from the Minister’s holding that “[i]t is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations” that the Minister made a determination of the meaning of “national interest”. An interpretative decision as to that term is necessarily implied within his ultimate decision on ministerial relief, although this Court is not in a position to determine with finality the actual reasoning of the Minister. In these circumstances, we may “consider the reasons that could be offered for the [Minister’s] decision when conducting a reasonableness review” of that decision (Alberta Teachers’ Association, at para. 54). Accordingly, I now turn to consider what appears to have been the ministerial interpretation of “national interest”, based on the Minister’s “express reasons” and the Guidelines, which inform the scope and context of those reasons. I will then assess whether this implied interpretation, and the Minister’s decision as a whole, were reasonable.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-34", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 59", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Minister stated in his reasons that he had “reviewed and considered the material and evidence submitted in its entirety”. This material included the following information set out in the CBSA’s briefing note, which addressed many of the questions presented in the Guidelines: 1. The extent of the appellant’s membership in, and activities on behalf of, the LNSF are in question. 2. At most, the appellant was a “passive member” of the LNSF who carried out “basic functions”. He was never involved in violent acts. 3. The appellant joined the LNSF in 1994 to support democracy, freedom of speech, and human rights in Libya. At that time, the organization was, by and large, no longer engaged in violence. In any event, the appellant claimed to have no knowledge of the LNSF’s involvement in violence and would not have supported the LNSF had it espoused the use of violence to achieve political change. 4. There is evidence to suggest that the appellant severed all ties with the LNSF when he came to Canada in 1997. 5. Throughout, the appellant’s goal has been to support the establishment of a democratic system of government in Libya. 6. The appellant has two children, attended English as a second language classes, and owns his own transport business. (A.R., vol. I, at pp. 5-9)", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-35", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 60–62", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Guidelines did not constitute a fixed and rigid code. Rather, they contained a set of factors, which appeared to be relevant and reasonable, for the evaluation of applications for ministerial relief. The Minister did not have to apply them formulaically, but they guided the exercise of his discretion and assisted in framing a fair administrative process for such applications. As a result, the Guidelines can be of assistance to the Court in understanding the Minister’s implied interpretation of the “national interest”.\n\nMoreover, the Minister placed particular emphasis on matters related to national security and public safety in the reasons he gave for his decision. These included: the appellant’s contradictory and inconsistent accounts of his involvement with the LNSF, a group that has engaged in terrorism; the fact that the appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had sustained contact with the LNSF.\n\nTaking all the above into account, had the Minister expressly provided a definition of the term “national interest” in support of his decision on the merits, it would have been one which related predominantly to national security and public safety, but did not exclude the other important considerations outlined in the Guidelines or any analogous considerations (see Appendix 1 (the relevant portions of the Guidelines)).", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-36", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 63–64", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "As a result of my comments above on the standard of review, I am of the view that the Minister is entitled to deference as regards this implied interpretation of the term “national interest”. As Rothstein J. stated, “[w]here the reviewing court finds that the tribunal has made an implicit decision on a critical issue, the deference due to the tribunal does not disappear” (Alberta Teachers’ Association, at para. 50).\n\nIn my view, the Minister’s interpretation of the term “national interest”, namely that it is focused on matters related to national security and public safety, but also encompasses the other important considerations outlined in the Guidelines and any analogous considerations, is reasonable. It is reasonable because, to quote the words of Fish J. from Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, it “accords . . . with the plain words of the provision, its legislative history, its evident purpose, and its statutory context” (para. 46). That is to say, the interpretation is consistent with Driedger’s modern approach to statutory interpretation: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. (Construction of Statutes (2nd ed. 1983), at p. 87) (1) Plain Words of the Provision", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-37", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 65–66", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "There is no dispute between the parties that the term “national interest” refers to matters which are of concern to Canada and to Canadians. There is no doubt that public safety and national security are matters which are of concern to Canada and to Canadians. It is equally clear, however, that more than just public safety and national security are of concern to Canada and to Canadians. For example, the plain meaning of the term “national interest” would also include the preservation of the values that underlie the Canadian Charter of Rights and Freedoms and the democratic character of the Canadian federation, and in particular the protection of the equal rights of every person to whom its laws and its Constitution apply. The plain words of the provision therefore favour a broader reading of the term “national interest” than the one suggested by the respondent and by the Federal Court of Appeal, which would limit its meaning to the protection of public safety and national security. The words of the statute are consistent with the Minister’s implied interpretation of this term, which relates predominantly to national security and public safety, but does not exclude the other important considerations outlined in the Guidelines or any analogous considerations. The legislative history of the provision is also relevant to an understanding of the range of values and interests underlying the concept of the national interest. (2) Legislative History of the Provision\n\nThe legislative history of s. 34(2) is a long one. In these reasons, I will only discuss the salient points of this history, those which serve to demonstrate that the Minister’s implied interpretation of the term “national interest” is consistent with it.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-38", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 67–69", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Ministerial relief from a finding of inadmissibility first became available in 1952. Relief was available to persons who were members of or associated with any organization, group or body that was or had been involved in the subversion by force or other means of democratic government, institutions or processes. Those who sought such relief had to satisfy the minister that they had ceased to be members of or associated with the organization, group or body in question and that their admission “would not be detrimental to the security of Canada” (Immigration Act, R.S.C. 1952, c. 325, s. 5(l)). Parliament made it clear at the time that it intended the focus of an application for ministerial relief to be national security.\n\nIn 1977, the provisions of the Immigration Act on inadmissibility were revised to read, in part, as follows: 19. (1) No person shall be granted admission if he is a member of any of the following classes: . . . (e) persons who have engaged in or who there are reasonable grounds to believe will engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, except persons who, having engaged in such acts, have satisfied the Minister that their admission would not be detrimental to the national interest; (Immigration Act, 1976, S.C. 1976-77, c. 52, s. 19(1)(e))\n\nThus, in 1977, Parliament made a clear decision to change the approach to ministerial relief. The test would no longer focus solely on national security, as access to relief would instead be premised on a broader array of domestic and international considerations constituting the “national interest”. Since then, the provisions on ministerial relief in both the IA and the IRPA have at all times referred to the “national interest”.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-39", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 70", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Parliament was (or at least must be taken to have been) aware of the previous “detrimental to the security of Canada” test when it decided to enact, and later to keep, the “national interest” test for ministerial relief. The fact that, at all material times, the wording of s. 34(2) referred to the applicant’s not being detrimental to the “national interest”, as opposed to not being detrimental to the “security of Canada”, strongly suggests that Parliament did not intend the term “national interest” to relate exclusively to national security and public safety. Had that been the case, Parliament could have returned to the expression “security of Canada” in enacting s. 34(2).", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-40", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 71–72", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The IRPA replaced the IA in 2002. As it was enacted in a post-9/11 world, the IRPA was clearly in part a response to the threats of the complex and dangerous environment which had been developing internationally. In support of his contention that the interpretation of the term “national interest” should focus on national security and public safety, the respondent quotes the following passage from a Senate Committee report in his factum: The Committee recognizes that Bill C-11 represents a major overhaul of Canada’s immigration and refugee protection legislation, and it will thus likely set the standard for many years to come. The Committee also fully appreciates that the current context in which the Bill is being considered is one of heightened security concerns following the profoundly tragic events of 11 September 2001 in the United States. In this context the Committee realizes that the Bill must embody a balance that will respect the needs and rights of individuals while simultaneously serving the public interest particularly with respect to security concerns and meeting Canada’s international obligations. [Emphasis added.] (Standing Senate Committee on Social Affairs, Science and Technology, “Ninth Report”, 1st Sess., 37th Parl., October 23, 2001 (online))\n\nThis passage certainly highlights the IRPA ’s role in “serving the public interest . . . with respect to security concerns”. However, it does not limit the national interest to security concerns. It also highlights the fact that meeting Canada’s international obligations (including, presumably, obligations stemming from rules of customary and conventional international human rights law) is an important part of the national interest.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-41", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 73", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "In 2005, the DPSEPA formally established both the Department of Public Safety and Emergency Preparedness and the Minister’s post. The respondent submits that the creation of this new department and of the CBSA, as well as the transfer of ministerial responsibility for decisions under s. 34(2), formed part of a new national security policy instituted by Parliament in response to the events of September 11, 2001. In particular, he argues that the legislative transfer of the responsibility for making such decisions from the MCI to the Minister, occurring as it did in the broader context of national security and public safety, supports the Federal Court of Appeal’s interpretation of the term “national interest”.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-42", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 74", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "I am not persuaded that the transfer of ministerial responsibility for s. 34(2) applications serves as a sufficient basis for upholding the Federal Court of Appeal’s interpretation of the term “national interest”. On its own, this transfer should not be read as changing, nor does it change, the substantive law governing relief applications under s. 34(2). Ministerial responsibilities may be reassigned for a wide variety of reasons. If this argument was valid, it would imply that the meaning of a law might change whenever ministerial responsibilities are reassigned. This would be a new and perplexing principle of interpretation. There is a presumption against the implicit alteration of the law according to which, absent an explicit change in the wording of a provision, it is presumed that Parliament did not intend to amend its meaning. Although the ministerial responsibility for deciding relief applications under s. 34(2) was transferred in 2005, Parliament did not amend the wording of this provision. Therefore, the presumption against implicit alteration applies, and there was no intent to amend the meaning of the term “national interest”. As the appellant points out in his factum, this presumption is not rebutted by a mere transfer of ministerial responsibility: It does not make sense that every time Parliament decides to change the responsibilities of particular Ministers for administrative purposes, or without indicating that there is a substantive reason for a change, the words of a statute should be given different meanings. A mere transfer in Ministerial responsibility is not sufficient to establish that the change is meant to have a substantive effect on the rights of persons who are affected by legislation administered by the various ministers.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-43", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 74–77", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Court of Appeal’s interpretation of national interest effectively amends section 34(2). Amending legislation is a legislative function, and falls outside of the judicial function. [para. 76]\n\nIn summary, this review demonstrates that the Minister’s implied interpretation of the term “national interest” — that it relates predominantly to national security and public safety, but does not exclude the other important considerations outlined in the Guidelines or any analogous considerations — is consistent with the legislative history of the provision. (3) Purpose of the Provision\n\nThe respondent argues that the IRPA is concerned with public safety and national security. More specifically, he argues that the purpose of s. 34(1)(c) and (f) is to ensure the safety and security of Canadians, while s. 34(2) provides for relief only for innocent or coerced members of terrorist organizations who would otherwise be inadmissible.\n\nThe respondent is correct in saying that the IRPA is concerned with national security and public safety. In fact, the Court recognized this in Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539: The objectives as expressed in the IRPA indicate an intent to prioritize security. . . . Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act. [para. 10]", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-44", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 78–79", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "That said, the respondent’s argument that s. 34(2) is focused exclusively on national security and public safety, and that it provides for relief only for innocent or coerced members of terrorist organizations, fails to give adequate consideration to the other objectives of the IRPA . Section 3(1) of the IRPA sets out 11 objectives of the Act with respect to immigration. Only two of these are related to public safety and national security: to protect public health and safety and to maintain the security of Canadian society (s. 3(1)(h)), and to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks (s. 3(1)(i)). The other nine objectives relate to other factors that properly inform the interpretation of the term “national interest” (e.g., “to permit Canada to pursue the maximum social, cultural and economic benefits of immigration” (s. 3(1)(a))). The explicit presence of these other objectives in the IRPA strongly suggests that this term is not limited to public safety and national security, but that the Parliament of Canada also intended that it be interpreted in the context of the values of a democratic state. Section 34 is intended to protect Canada, but from the perspective that Canada is a democratic nation committed to protecting the fundamental values of its Charter and of its history as a parliamentary democracy.\n\nAccordingly, the Minister’s broad implied interpretation of the term “national interest” is also consistent with the purpose of the provision. (4) Context of the Provision", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-45", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 80–81", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "As the Court noted in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, “[t]he preferred approach [to statutory interpretation] recognizes the important role that context must inevitably play when a court construes the written words of a statute” (para. 27). The context of s. 34(2) provides much guidance for the interpretation of the term “national interest”.\n\nFirst, according to the presumption of consistent expression, when different terms are used in a single piece of legislation, they must be understood to have different meanings. If Parliament has chosen to use different terms, it must have done so intentionally in order to indicate different meanings. The term “national interest” is used in s. 34(2), which suggests that what is to be considered by the Minister under that provision is broader than the considerations of whether the individual is “a danger to the security of Canada” (s. 34(1)(d)) or whether he or she “might endanger the lives or safety of persons in Canada” (s. 34(1)(e)), both of which appear in s. 34(1). If Parliament had intended national security and public safety to be the only considerations under s. 34(2), it could have said so using the type of language found in s. 34(1). It did not do so, however.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-46", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 82–83", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "In a similar vein, the terms “national security”, “danger to the public” and “endanger the safety of any person” each appear several times elsewhere in the IRPA . In light of the presumption of consistent expression, “national interest” cannot be synonymous with any of these terms. Rather, the use of the term “national interest” implies that the Minister is to carry out a broader analysis under s. 34(2). Contrary to what the Federal Court of Appeal held in the case at bar, in determining whether a person’s continued presence in Canada would not be detrimental to the national interest, the Minister must consider more than just national security and whether the applicant is a danger to the public or to the safety of any person.\n\nSecond, if s. 34(2) were concerned solely with the danger an applicant poses to the security of Canada, it would be impossible for a person found to be inadmissible under s. 34(1)(d) (“being a danger to the security of Canada”) to obtain relief under s. 34(2). This is an absurd interpretation which must be avoided.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-47", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 84", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Third, the respondent argues that, because of the possibility of H&C relief under s. 25 of the IRPA , the principle of consistent expression dictates that H&C factors should not be relevant to a determination of what is in the national interest under s. 34(2). I agree, but with some qualifications. H&C considerations are more properly considered in the context of a s. 25 application, and s. 34 should not be transformed into an alternative form of humanitarian review. But s. 34 does not necessarily exclude the consideration of personal factors that might be relevant to this particular form of review. For example, such considerations may have an impact on the assessment of the applicant’s personal characteristics for the purpose of determining whether he or she can be viewed as a threat to the security of Canada. Of the considerations in the Guidelines unrelated to national security and public safety which formed part of the Minister’s implied interpretation, only very few are H&C factors. The fact that the Minister considered such factors did not render his interpretation of the term “national interest” unreasonable.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-48", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 85–86", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, the broader context of s. 34(2) of the IRPA also includes the Guidelines. Although not law in the strict sense, and although they are liable to evolve over time as the context changes, thus giving rise to new requirements adapted to different contexts, guidelines are “a useful indicator of what constitutes a reasonable interpretation of the . . . section” (Baker, at para. 72). The Guidelines were published in 2005, and they applied to applications for ministerial relief under s. 34(2) at the time the Minister reached his decision on the appellant’s application. As is evident from the numerous considerations contained in Appendix 1, the Guidelines represent a broad approach to the concept of the “national interest”. They do not simply equate the “national interest” with national security and public safety, as the Federal Court of Appeal did. Rather, they suggest that the national interest analysis is broader than that, although its focus may properly be on national security and public safety.\n\nThus, the Minister’s implied interpretation of the term “national interest” — that it relates predominantly to national security and public safety, but does not exclude the other important considerations outlined in the Guidelines or any analogous considerations — is consistent with all these contextual indications of the meaning of this term.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-49", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 87–88", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "In summary, an analysis based on the principles of statutory interpretation reveals that a broad range of factors may be relevant to the determination of what is in the “national interest”, for the purposes of s. 34(2). Even excluding H&C considerations, which are more appropriately considered in the context of a s. 25 application, although the factors the Minister may validly consider are certainly not limitless, there are many of them. Perhaps the best illustration of the wide variety of factors which may validly be considered under s. 34(2) can be seen in the ones set out in the Guidelines (with the exception of the H&C considerations included in the Guidelines). Ultimately, which factors are relevant to the analysis in any given case will depend on the particulars of the application before the Minister (Soe, at para. 27; Tameh, at para. 43).\n\nThis interpretation is compatible with the interpretation of the term “national interest” the Minister might have given in support of his decision on the appellant’s application for relief. It is consistent with that decision. The Minister’s implied interpretation of the term related predominantly to national security and public safety, but did not exclude the other important considerations outlined in the Guidelines or any analogous considerations. In light of my discussion of the principles of statutory interpretation, this interpretation was eminently reasonable. F. Is the Minister’s Decision Valid?", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-50", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 89–90", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Having concluded that the Minister’s implied interpretation of the term “national interest” is reasonable, I should also confirm that the decision as a whole is valid. The Minister’s reasons were justifiable, transparent and intelligible. Although brief, they made clear the process he had followed in ruling on the appellant’s application. He reviewed and considered all the material and evidence before him. Having done so, he placed particular emphasis on: the appellant’s contradictory and inconsistent accounts of his involvement with the LNSF, a group that has engaged in terrorism; the fact that the appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had sustained contact with the LNSF. The Minister’s reasons revealed that, on the basis of his review of the evidence and other submissions as a whole, and of these factors in particular, he was not satisfied that the appellant’s continued presence in Canada would not be detrimental to the national interest. In short, his reasons allow this Court to clearly understand why he made the decision he did.\n\nFurthermore, the Minister’s decision falls within a range of possible acceptable outcomes which are defensible in light of the facts and the law. The burden was on the appellant to show that his continued presence in Canada would not be detrimental to the national interest. The Minister declined to provide discretionary relief to the appellant, as he was not satisfied that this burden had been discharged. His conclusion was acceptable in light of the facts which had been submitted to him.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-51", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 91–92", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "As this Court held in Suresh, a court reviewing the reasonableness of a minister’s exercise of discretion is not entitled to engage in a new weighing process (para. 37; see also Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 39). As the Minister stated in his reasons, he had “reviewed and considered” (i.e. weighed) all the factors set out in the appellant’s application which were relevant to determining what was in the “national interest” in light of his reasonable interpretation of that term. He gave particular weight to certain factors pertaining to national security and public safety and emphasized them in his reasons, namely: the appellant’s contradictory and inconsistent accounts of his involvement with the LNSF; the fact that the appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had sustained contact with the LNSF. Given that the Minister considered and weighed all the relevant factors as he saw fit, it is not open to the Court to set the decision aside on the basis that it is unreasonable.\n\nIn all the circumstances, it cannot be said that either the result or the Minister’s decision as a whole was unreasonable. But a final issue remains: it relates to an allegation of a failure to meet the requirements of procedural fairness. G. Was the Decision Unfair, and Did It Fail to Meet the Appellant’s Legitimate Expectations?", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-52", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 93–94", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "As this Court noted in Dunsmuir, at para. 79, “[p]rocedural fairness is a cornerstone of modern Canadian administrative law. Public decision makers are required to act fairly in coming to decisions that affect the rights, privileges or interests of an individual.” The Court’s comment that “[p]rocedural fairness has many faces” (Dunsmuir, at para. 77) is also relevant to this case.\n\nThe particular face of procedural fairness at issue in this appeal is the doctrine of legitimate expectations. This doctrine was given a strong foundation in Canadian administrative law in Baker, in which it was held to be a factor to be applied in determining what is required by the common law duty of fairness. If a public authority has made representations about the procedure it will follow in making a particular decision, or if it has consistently adhered to certain procedural practices in the past in making such a decision, the scope of the duty of procedural fairness owed to the affected person will be broader than it otherwise would have been. Likewise, if representations with respect to a substantive result have been made to an individual, the duty owed to him by the public authority in terms of the procedures it must follow before making a contrary decision will be more onerous.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-53", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 95–96", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The specific conditions which must be satisfied in order for the doctrine of legitimate expectations to apply are summarized succinctly in a leading authority entitled Judicial Review of Administrative Action in Canada: The distinguishing characteristic of a legitimate expectation is that it arises from some conduct of the decision-maker, or some other relevant actor. Thus, a legitimate expectation may result from an official practice or assurance that certain procedures will be followed as part of the decision-making process, or that a positive decision can be anticipated. As well, the existence of administrative rules of procedure, or a procedure on which the agency had voluntarily embarked in a particular instance, may give rise to a legitimate expectation that such procedures will be followed. Of course, the practice or conduct said to give rise to the reasonable expectation must be clear, unambiguous and unqualified. [Emphasis added.] (D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §7:1710; see also Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, at para. 29; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 68.)\n\nIn Mavi, Binnie J. recently explained what is meant by “clear, unambiguous and unqualified” representations by drawing an analogy with the law of contract (at para. 69): Generally speaking, government representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-54", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 97", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "An important limit on the doctrine of legitimate expectations is that it cannot give rise to substantive rights (Baker, at para. 26; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557). In other words, “[w]here the conditions for its application are satisfied, the Court may [only] grant appropriate procedural remedies to respond to the ‘legitimate’ expectation” (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 131 (emphasis added)).", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-55", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 98", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the case at bar, the Guidelines created a clear, unambiguous and unqualified procedural framework for the handling of relief applications, and thus a legitimate expectation that that framework would be followed. The Guidelines were published by CIC, and, although CIC is not the Minister’s department, it is clear that they are “used by employees of [both] CIC and the CBSA for guidance in the exercise of their functions and in applying the legislation” (R.F., at para. 108). The Guidelines are and were publicly available, and, as Appendix 2 to these reasons illustrates, they constitute a relatively comprehensive procedural code for dealing with applications for ministerial relief. Thus, the appellant could reasonably expect that his application would be dealt with in accordance with the process set out in them. In brief, this process is as follows: 1. Following the receipt of an application for relief, the CIC officer provides the applicant with a copy of the “National Interest Information Sheet”. The applicant is given 15 days to send his or her submission to the local CIC office. 2. Upon receipt of the applicant’s submission, the CIC officer prepares a report which discusses the current situation regarding the applicant’s ground for inadmissibility, the details of the applicant’s application for relief, and any personal or exceptional circumstances of the applicant that should be considered. 3. The CIC report is forwarded to the National Security Division, Intelligence Directorate, CBSA, along with the applicant’s submission and all supporting documents. The CBSA may conduct further investigations at this stage. 4. The CBSA analyst prepares a recommendation to the Minister, which includes all supporting documentation. 5.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-56", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 98–99", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "A copy of the recommendation to the Minister is disclosed to the applicant, who may then make additional submissions or provide additional documents in response. 6. The applicant’s original submission and its supporting documentation, the CIC officer’s report, the CBSA’s recommendation, and any additional submissions or documents received from the applicant in response to that recommendation are all forwarded to the Minister. 7. The Minister renders a decision on the application. The decision is entirely within the Minister’s discretion. 8. If the decision is negative, CIC issues a refusal letter to the applicant.\n\nThe appellant has not shown that his application was not dealt with in accordance with this process outlined in the Guidelines. In May 2002, he was advised of the ministerial relief process by way of a letter akin to the National Interest Information Sheet. He responded to this letter by making submissions through his counsel, and CIC then prepared its report. The CBSA prepared a briefing note for the Minister, which contained its recommendation, and this note was disclosed to the appellant. The appellant declined to make additional submissions or provide additional documents in response to the recommendation. The appellant’s submission and its supporting documentation, the CIC officer’s report, and the CBSA’s recommendation were all forwarded to the Minister, and the Minister rendered a decision on the application. As counsel for the appellant rightly acknowledges, “[i]n the Appellant’s case, the Ministerial relief process followed the process set out in the IP 10 guidelines” (A.F., at para. 53). His legitimate expectation in this regard was therefore fulfilled.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-57", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "para 100", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant raises a further argument to the effect that he had a legitimate expectation that the Minister would consider certain factors in determining his relief application. The source of this alleged expectation is twofold. First, the appellant argues that the Guidelines created an expectation that the pertinent factors set out in Appendix 1 to these reasons would be considered. Second, he alleges that he had a legitimate expectation that H&C factors would be considered in determining his application as a result of a letter CIC had sent him on May 22, 2002. That letter read, in part, as follows: The Minister will consider whether granting you permanent residence to Canada would be contrary to the National Interest to Canada. This will require an assessment of the detriment that you pose to the National Interest of Canada, as well as any humanitarian and compassionate circumstances pertinent to your situation. [Emphasis added; A.R., vol. III, at p. 287.]", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-13137-58", + "doc_type": "caselaw", + "act_code": "2013 SCC 36", + "act_short": "Agraira", + "act_name": "Agraira v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36", + "marginal_note": "paras 101–103", + "heading": "Ministerial relief from inadmissibility on security grounds; the national interest under IRPA", + "part": "Supreme Court of Canada", + "division": "", + "text": "Even were I to assume that the Guidelines and the letter unambiguously promised the appellant that certain factors would be considered in assessing his application for relief and that, at law, someone in his position might in fact have a legitimate expectation that certain factors would be considered in making a discretionary decision, his argument would nevertheless fail. As I mentioned above, the Minister’s implied interpretation of the term “national interest” encompasses all the factors referred to in the Guidelines. Also as I mentioned above, and as the appellant acknowledges, these factors include H&C factors (A.F., at para. 122). In a manner consistent with this interpretation of the term “national interest”, the Minister “reviewed and considered the material and evidence submitted in its entirety”. Therefore, if the appellant had a legitimate expectation that the Minister would consider certain factors, including H&C factors, in determining his application for relief, this expectation was fulfilled.\n\nIn my opinion, there was no failure to meet the appellant’s legitimate expectations or to discharge the duty of procedural fairness owed to him. The Minister’s decision cannot therefore be set aside on this basis. V. Conclusion\n\nAs a result, I would dismiss the appeal and allow the Minister’s decision under s. 34(2) of the IRPA to stand. In the circumstances, and taking particular account of the Minister’s inordinate delay in rendering a decision that was of the utmost importance to Mr. Agraira, I would make no order as to costs.", + "current_to": "2013-06-20", + "last_amended": "", + "history": "Also reported: [2013] 2 SCR 559", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" + }, + { + "id": "scc-6901-1", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 1–2", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Binnie J. — At issue in this appeal is the extent to which, if at all, the exercise by judges of statutory powers of judicial review (such as those established by ss. 18 and 18.1 of the Federal Courts Act , R.S.C. 1985, c. F-7 ) is governed by the common law principles lately analysed by our Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.\n\nThe respondent, Khosa, applied unsuccessfully to the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board to remain in Canada, notwithstanding his conviction for criminal negligence causing death in an automobile street race. A valid removal order had been issued to return him to India. The majority of the IAD did not accept that there were “sufficient humanitarian and compassionate considerations [to] warrant special relief [against the removal order] in light of all the circumstances of the case” within the meaning of s. 67(1) (c) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”). Applying the “patent unreasonableness” standard of review, the judicial review judge at first instance dismissed Khosa’s challenge to the IAD decision. However, applying a “reasonableness” simpliciter standard of review, a majority of the Federal Court of Appeal set aside the IAD decision. Dunsmuir (decided subsequently to both lower court decisions) did away with the distinction between “patent unreasonableness” and “reasonableness simpliciter” and substituted a more context-driven view of “reasonableness” that nevertheless “does not pave the way for a more intrusive review by courts” (para. 48).", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-2", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 3", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant Minister sought leave to appeal to this Court to argue that in any event s. 18.1 of the Federal Courts Act establishes a legislated standard of review that displaces the common law altogether. On this view, Dunsmuir is largely irrelevant to the current appeal. However, it is apparent that while the courts below differed on the choice of the appropriate common law standard of review, neither the judge at first instance nor any of the judges of the appellate court considered the common law of judicial review to be displaced by s. 18.1 of the Federal Courts Act . The trial court took the view that s. 18.1 of the Federal Courts Act deals essentially with grounds of review of administrative action, not standards of review, and the Federal Court of Appeal proceeded in the same way. I think this approach is correct although, as will be discussed, s. 18.1(4)(d) does provide legislative guidance as to “the degree of deference” owed to the IAD’s findings of fact.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-3", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 4", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Dunsmuir teaches that judicial review should be less concerned with the formulation of different standards of review and more focussed on substance, particularly on the nature of the issue that was before the administrative tribunal under review. Here, the decision of the IAD required the application of broad policy considerations to the facts as found to be relevant, and weighed for importance, by the IAD itself. The question whether Khosa had shown “sufficient humanitarian and compassionate considerations” to warrant relief from his removal order, which all parties acknowledged to be valid, was a decision which Parliament confided to the IAD, not to the courts. I conclude that on general principles of administrative law, including our Court’s recent decision in Dunsmuir, the applications judge was right to give a higher degree of deference to the IAD decision than seemed appropriate to the Federal Court of Appeal majority. In my view, the majority decision of the IAD was within a range of reasonable outcomes and the majority of the Federal Court of Appeal erred in intervening in this case to quash it. The appeal is therefore allowed and the decision of the Immigration Appeal Division is restored. I. Facts", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-4", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 5", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The respondent, Sukhvir Singh Khosa, is a citizen of India. He immigrated to Canada with his family in 1996, at the age of 14. He has landed immigrant status. During the evening of November 13, 2000, he and an individual named Bahadur Singh Bhalru, drove their respective cars at over 100 kilometres per hour along Marine Drive through a residential and commercial area of Vancouver. At their criminal trial, the court concluded that they were “street racing”. Khosa was prepared to plead guilty to a charge of dangerous driving, but not to the more serious charge of criminal negligence causing death, of which he was eventually convicted. The respondent continued to deny street racing, although he admitted that he was speeding and that his driving behaviour was exceptionally dangerous. On appeal from sentencing, the British Columbia Court of Appeal commented: . . . it is significant that the respondents were racing. They were driving at excessive speeds in competition with each other on a major street lined with both commercial and residential properties. They did this at a time when other vehicles and pedestrians reasonably could be expected to be on the roads. . . . The “spontaneous” nature of the race . . . mitigates the severity with which it should be assessed. The race was not planned, did not involve vehicles specifically modified for the purpose of racing, and was of relatively short duration. As unacceptable as the conduct of the respondents was, it represented a reckless error in judgment more than a deliberate endangerment of the public. (2003 BCCA 645, 190 B.C.A.C. 42, at paras.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-5", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 5–7", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "33 and 36) As to the “moral culpability” of the respondent and his co-accused, the Court of Appeal continued: The Crown concedes that there are several factors which mitigate the moral culpability of the respondents in this case. Mr. Khosa and Mr. Bhalru are both young, have no prior criminal record or driving offences, have expressed remorse for the consequences of their conduct, and have favourable prospects for rehabilitation. . . . [para. 38]\n\nThe respondent received a conditional sentence of two years less a day. The conditions included house arrest, a driving ban, and community service, all of which were complied with prior to the IAD hearing. II. Judicial History A. Immigration Appeal Division, [2004] I.A.D.D. No. 1268 (QL) (1) The Majority\n\nThe majority of the IAD recognized (at para. 12) that its discretionary jurisdiction to grant “special relief” on humanitarian and compassionate grounds under s. 67(1) (c) of the IRPA should be exercised in light of the factors adopted in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at paras. 40, 41 and 90, namely: (1) the seriousness of the offence leading to the removal order; (2) the possibility of rehabilitation; (3) the length of time spent, and the degree to which the individual facing removal is established, in Canada; (4) the family and community support available to the individual facing removal; (5) the family in Canada and the dislocation to the family that removal would cause; and (6) the degree of hardship that would be caused to the individual facing removal to his country of nationality.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-6", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 8–9", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority considered that the last four Ribic factors were not particularly compelling for or against relief. As to the first two factors, the offence in question was “extremely serious” (para. 14) and the majority expressed particular concern over Khosa’s refusal to accept without reservation the finding that he had been street racing. The IAD majority considered that this refusal “reflects a lack of insight into his conduct” (para. 15). As to Khosa’s prospects for rehabilitation, the majority decided that there was insufficient evidence upon which to make a finding one way or the other (paras. 15 and 23). However, even if Khosa had good prospects for rehabilitation, “balancing all the relevant factors, . . . the scale does not tip in [Khosa’s] favour” (para. 23). Accordingly, “special relief” was denied. (2) The Dissent\n\nThe dissenting member of the IAD would also have denied the appeal, but she would have stayed the execution of the deportation order pending a further review in three years. She acknowledged the seriousness of the offence for which Khosa was convicted but found that it was mitigated by matters not considered important by the majority. Evidence of remorse and rehabilitation favoured relief. Having regard to the criminal proceedings, she noted that no penitentiary term was considered appropriate. The crime of which Khosa was convicted is not one of intent. There was no evidence of criminal propensity. The race was spontaneous and short. All sentencing conditions had been complied with. In the circumstances, she concluded that relief ought to be granted on humanitarian and compassionate grounds. B. Federal Court, 2005 FC 1218, 266 F.T.R. 138", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-7", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 10–12", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Lutfy C.J. dismissed Khosa’s application for judicial review. He found that considerable deference was required, given the broad nature of the discretion vested in the IAD and its expertise in applying Ribic factors in appeals under s. 67(1) (c) of the IRPA . The appropriate standard of review is patent unreasonableness. Whether or not the IAD majority erred in its appreciation of the evidence in light of the Ribic factors is “substantially, if not completely, factual” (para. 29).\n\nLutfy C.J. said that the crux of Khosa’s argument was that the majority of the IAD erred by placing inordinate emphasis on his denial that his admittedly dangerous driving took place in the context of a street race, but the judge declined to reweigh the evidence, saying (at para. 36): In assessing Mr. Khosa’s expression of remorse, they [the majority] chose to place greater weight on his denial that he participated in a “race” than others might have. The IAD conclusion on the issue of remorse appears to differ from that of the criminal courts. The IAD, however, unlike the criminal courts, had the opportunity to assess Mr. Khosa’s testimony.\n\nIn the result, Lutfy C.J. held that there was no basis for concluding that “the majority opinion is patently unreasonable or, in the words of paragraph 18.1(4) (d) of the Federal Courts Act , one which was based on an erroneous finding of fact ‘made in a perverse or capricious manner or without regard for the material’” (para. 39). C. Federal Court of Appeal, 2007 FCA 24, [2007] 4 F.C.R. 332 (1) The Majority", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-8", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 13–14", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Décary J.A. (Malone J.A. concurring) disagreed with Lutfy C.J. on the appropriate standard of review. In his view, the applicable standard was “reasonableness”. Accordingly, “[s]ince the applications Judge applied the wrong standard of review, it is my duty, on appeal, to review the Board’s decision on the correct standard of review, that is, on the standard of reasonableness” (para. 14).\n\nWith respect to the second Ribic factor, Décary J.A. said that the “possibility of rehabilitation” is a criminal law concept with which the IAD does not have particular expertise. It should be wary of questioning findings of the criminal courts on matters falling squarely within their expertise. The majority “merely acknowledges the findings of the British Columbia courts in that regard, which are favourable to [Khosa], and does not explain why it comes to the contrary conclusion . . . . The whole of the evidence with respect to the conduct of [Khosa] after his sentencing undisputedly strengthens the findings of the criminal courts. Yet, the Board ignores that evidence and those findings” (para. 17). As to the “street racing” issue, Décary J.A. said: It clearly appears from the transcripts of the hearing that the presiding member — who wrote the majority decision — and counsel for the Crown, had some kind of fixation with the fact that the offence was related to street racing, to such a point that the hearing, time and time again, was transformed into a quasi-criminal trial, if not into a new criminal trial. [para. 18] For these reasons, Décary J.A. concluded that the majority had acted unreasonably. (2) The Dissent", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-9", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 15", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Desjardins J.A. concluded that the applications judge was right to apply the “patent unreasonableness” standard. She emphasized that the IAD has expertise in applying the Ribic factors in decisions under s. 67(1)(c) of the IRPA and that this exercise is “highly fact-based and contextual” (para. 36). Desjardins J.A. also emphasized the broad discretion conferred upon the IAD by s. 67(1) (c) of the IRPA . In her view, Lutfy C.J. had made no reviewable error. She would have dismissed the appeal. III. Relevant Statutory Provisions", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-10", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 16", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Immigration and Refugee Protection Act , S.C. 2001, c. 27 3. (1) The objectives of this Act with respect to immigration are . . . (h) to protect the health and safety of Canadians and to maintain the security of Canadian society; 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, . . . (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. Federal Courts Act , R.S.C. 1985, c. F-7 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. (2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-11", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 16", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "(3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. (5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may (a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and (b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate. IV. Analysis", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-12", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 17–18", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "This appeal provides a good illustration of why the adjustment made by Dunsmuir was timely. By switching the standard of review from patent unreasonableness to reasonableness simpliciter, the Federal Court of Appeal majority felt empowered to retry the case in important respects, even though the issues to be resolved had to do with immigration policy, not law. Clearly, the majority felt that the IAD disposition was unjust to Khosa. However, Parliament saw fit to confide that particular decision to the IAD, not to the judges.\n\nIn cases where the legislature has enacted judicial review legislation, an analysis of that legislation is the first order of business. Our Court had earlier affirmed that, within constitutional limits, Parliament may by legislation specify a particular standard of review: see R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779. Nevertheless, the intended scope of judicial review legislation is to be interpreted in accordance with the usual rule that the terms of a statute are to be read purposefully in light of its text, context and objectives.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-13", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 19–20", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Generally speaking, most if not all judicial review statutes are drafted against the background of the common law of judicial review. Even the more comprehensive among them, such as the British Columbia Administrative Tribunals Act, S.B.C. 2004, c. 45, can only sensibly be interpreted in the common law context because, for example, it provides in s. 58(2)(a) that “a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable”. The expression “patently unreasonable” did not spring unassisted from the mind of the legislator. It was obviously intended to be understood in the context of the common law jurisprudence, although a number of indicia of patent unreasonableness are given in s. 58(3). Despite Dunsmuir, “patent unreasonableness” will live on in British Columbia, but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law. That said, of course, the legislature in s. 58 was and is directing the B.C. courts to afford administrators a high degree of deference on issues of fact, and effect must be given to this clearly expressed legislative intention. A. A Difference of Perspective\n\nAs Rand J. commented in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140, “there is always a perspective within which a statute is intended to operate”. This applies to s. 18.1 of the Federal Courts Act as much as it does to any other enactment.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-14", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 21–23", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "My colleague Justice Rothstein adopts the perspective that in the absence of a privative clause or statutory direction to the contrary, express or implied, judicial review under s. 18.1 is to proceed “as it does in the regular appellate context” (para. 117). Rothstein J. writes: On my reading, where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context. [Emphasis added.] I do not agree that such an implication is either necessary or desirable. My colleague states that “where a legal question can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause” (para. 90), citing Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8 and 13. Housen, of course, was a regular appeal in a civil negligence case.\n\nOn this view, the reviewing court applies a standard of review of correctness unless otherwise directed to proceed (expressly or by necessary implication) by the legislature.\n\nRothstein J. writes, at para. 87, that the Court “depart[ed] from the conceptual origin of standard of review” in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557. Pezim was a unanimous decision of the Court which deferred to the expertise of a specialized tribunal in the interpretation of provisions of the Securities Act, S.B.C. 1985, c. 83, despite the presence of a right of appeal and the absence of a privative clause.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-15", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 24", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The conceptual underpinning of the law of judicial review was “further blurred”, my colleague writes, by Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, which treated the privative clause “simply as one of several factors in the calibration of deference (standard of review)” (para. 92). In my colleague’s view, “[i]t is not for the court to impute tribunal expertise on legal questions, absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed” (para. 91).", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-16", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 25", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "I do not share Rothstein J.’s view that absent statutory direction, explicit or by necessary implication, no deference is owed to administrative decision-makers in matters that relate to their special role, function and expertise. Dunsmuir recognized that with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision had been allocated to an administrative decision-maker rather than to the courts. This deference extended not only to facts and policy but to a tribunal’s interpretation of its constitutive statute and related enactments because “there might be multiple valid interpretations of a statutory provision or answers to a legal dispute and that courts ought not to interfere where the tribunal’s decision is rationally supported” (Dunsmuir, at para. 41). A policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (Dunsmuir, at para. 49, quoting Professor David J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?��� (2004), 17 C.J.A.L.P. 59, at p. 93). Moreover, “[d]eference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context” (Dunsmuir, at para. 54).", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-17", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 26–28", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Dunsmuir stands against the idea that in the absence of express statutory language or necessary implication, a reviewing court is “to apply a correctness standard as it does in the regular appellate context” (Rothstein J., at para. 117). Pezim has been cited and applied in numerous cases over the last 15 years. Its teaching is reflected in Dunsmuir. With respect, I would reject my colleague’s effort to roll back the Dunsmuir clock to an era where some courts asserted a level of skill and knowledge in administrative matters which further experience showed they did not possess. B. Section 18.1 of the Federal Courts Act\n\nGiven the differing perspectives that Rothstein J. and I bring to judicial review, it is not surprising that we differ on the role and function of s. 18.1 of the Federal Courts Act .\n\nIn my view, the interpretation of s. 18.1 of the Federal Courts Act must be sufficiently elastic to apply to the decisions of hundreds of different “types” of administrators, from Cabinet members to entry-level fonctionnaires, who operate in different decision-making environments under different statutes with distinct grants of decision-making powers. Some of these statutory grants have privative clauses; others do not. Some provide for a statutory right of appeal to the courts; others do not. It cannot have been Parliament’s intent to create by s. 18.1 of the Federal Courts Act a single, rigid Procrustean standard of decontextualized review for all “federal board[s], commission[s] or other tribunal[s]”, an expression which is defined (in s. 2) to include generally all federal administrative decision-makers. A flexible and contextual approach to s. 18.1 obviates the need for Parliament to set customized standards of review for each and every federal decision-maker.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-18", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 29–30", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Minister’s reliance on Owen is misplaced. At issue in that case was the standard applicable to the highly specific task of judicial review of decisions of Review Boards set up under s. 672.38 of the Criminal Code , R.S.C. 1985, c. C-46 , to deal with individuals found not criminally responsible (“NCR”) on account of a mental disorder. The mandate of these Boards is to determine the “least onerous and least restrictive” limits on the liberty of NCR individuals who remain a “significant threat to the safety of the public” (s. 672.54). On a statutory appeal (s. 672.78), the Court of Appeal is authorized to set aside a Review Board order on a number of grounds, namely (a) the decision is unreasonable or cannot be supported by the evidence; or, (b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice.\n\nThe Owen court held that where Parliament has shown a clear intent then, absent any constitutional challenge, that is the standard of review that is to be applied (para. 32). This approach was affirmed in Dunsmuir where the majority said that “determining the applicable standard of review is accomplished by establishing legislative intent” (para. 30).", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-19", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 31", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "However, in Owen itself, even in the context of a precisely targeted proceeding related to a named adjudicative board, the standard of review was evaluated by reference to the common law of judicial review, as was made clear in the following paragraph: The first branch of the test corresponds with what the courts call the standard of review of reasonableness simpliciter, i.e., the Court of Appeal should ask itself whether the Board’s risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination . . . . [para. 33] And in the next paragraph: Resort must therefore be taken to the jurisprudence governing judicial review on a standard of reasonableness simpliciter . . . . [para. 34] See also Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-20", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 32–33", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, the Court dealt with the second branch of s. 672.78(1)(b) (“error of law”) on ordinary administrative law principles (clearly applying a correctness standard, at para. 25). As to the saving proviso (i.e., the decision may be set aside for an error of law unless “no substantial wrong or miscarriage of justice has occurred”), the Pinet court held that the party seeking to uphold the Review Board decision despite the error of law must “satisfy the appellate court that a Review Board, acting reasonably, and properly informed of the law, would necessarily have reached the same conclusion absent the legal error” (para. 28). None of this is explicit in the statute, but the common law was necessarily called in aid to fill in interstices in the legislation. See also Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326.\n\nResort to the general law of judicial review is all the more essential in the case of a provision like s. 18.1 of the Federal Courts Act which, unlike s. 672 of the Criminal Code , is not limited to particular issues before a particular adjudicative tribunal but covers the full galaxy of federal decision-makers. Section 18.1 must retain the flexibility to deal with an immense variety of circumstances. C. Matter of Statutory Interpretation", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-21", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 34", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The genesis of the Federal Courts Act lies in Parliament’s decision in 1971 to remove from the superior courts of the provinces the jurisdiction over prerogative writs, declarations, and injunctions against federal boards, commissions and other tribunals and to place that jurisdiction (slightly modified) in a new federal court. As Donald S. Maxwell, Q.C., the then Deputy Minister of Justice, explained to the House of Commons Standing Committee on Justice and Legal Affairs: Clause 18 is based on the philosophy that we want to remove the jurisdiction and prerogative matters from the Superior Courts of the provinces and place them in our own federal Superior Court. . . . . . . Having got them there, we think they are not entirely satisfactory. We feel that there should be improvements made on these remedies of certiorari and prohibition. This is what we are endeavouring to do in Clause 28. (See Minutes of Proceedings and Evidence of the Committee, No. 26, 2nd Sess., 28th Parl., May 7, 1970, at pp. 25‑26.) This transfer of jurisdiction was recognized and accepted in Pringle v. Fraser, [1972] S.C.R. 821; Howarth v. National Parole Board, [1976] 1 S.C.R. 453, at pp. 470-72, and Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at p. 637, with the proviso that such transfer does not deprive the provincial superior courts of their jurisdiction to determine the constitutional validity and applicability of legislation: Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307. Subsequent amendments to the Act in 1990 (when s. 18.1 was added) clarified and simplified its expression and implementation, but did not have the effect of excluding the common law. R. Sullivan, Sullivan on the Construction of Statutes (5th ed.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-22", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 34–36", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "2008), notes that “courts readily assume that reform legislation is meant to be assimilated into the existing body of common law” (p. 432; see also pp. 261-62).\n\nMy colleague Rothstein J. writes that “to say (or imply) that a Dunsmuir standard of review analysis applies even where the legislature has articulated the applicable standard of review directly contradicts Owen” (para. 100). This assumes the point in issue, namely whether as a matter of interpretation, Parliament has or has not articulated the applicable standard of review in s. 18.1.\n\nIn my view, the language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief. Whether or not the court should exercise its discretion in favour of the application will depend on the court’s appreciation of the respective roles of the courts and the administration as well as the “circumstances of each case”: see Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 575. Further, “[i]n one sense, whenever the court exercises its discretion to deny relief, balance of convenience considerations are involved” (D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 3-99). Of course, the discretion must be exercised judicially, but the general principles of judicial review dealt with in Dunsmuir provide elements of the appropriate judicial basis for its exercise.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-23", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 37", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "On this point, as well, my colleague Rothstein J. expresses disagreement. He cites a number of decisions dealing with different applications of the Court’s discretion. He draws from these cases the negative inference that other applications of the discretion are excluded from s. 18.1(4). In my view, with respect, such a negative inference is not warranted. Decisions that address unrelated problems are no substitute for a proper statutory analysis of s. 18.1(4) itself which in the English text provides that 18.1 . . . (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal . . .", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-24", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 38", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "A different concern emerges from the equally authoritative French text of s. 18.1(4) which reads: 18.1 . . . (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : . . . Generally speaking, the use of the present indicative tense (sont prises) is not to be read as conferring a discretion: see s. 11 of the French version of the Interpretation Act , R.S.C. 1985, c. I-21 , and P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), p. 72, fn. 123 (in the French edition, the point is canvassed by Professor Côté, at p. 91, fn. 123). It has been truly remarked in the context of bilingual legislation that “Canadians read only one version of the law at their peril”: M. Bastarache et al., The Law of Bilingual Interpretation (2008), at p. 32. However, the text of s. 18.1(4) must be interpreted not only in accordance with the rules governing bilingual statutes but within the larger framework of the modern rule that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-25", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 39", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The English version of s. 18.1(4) is permissive; the court is clearly given discretion. In the French version, the words “sont prises” translate literally as “are taken” which do not, on the face of it, confer a discretion. A shared meaning on this point is difficult to discern. Nevertheless, the linguistic difference must be reconciled as judges cannot be seen to be applying s. 18.1(4) differently across the country depending on which language version of s. 18.1(4) they happen to be reading. In R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at para. 26, the Court cited with approval the following approach: Unless otherwise provided, differences between two official versions of the same enactment are reconciled by educing the meaning common to both. Should this prove to be impossible, or if the common meaning seems incompatible with the intention of the legislature as indicated by the ordinary rules of interpretation, the meaning arrived at by the ordinary rules should be retained. (Quoting Côté, at p. 324.) (See also Bastarache et al., at p. 32.) Linguistic analysis of the text is the servant, not the master, in the task of ascertaining Parliamentary intention: see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp. 1071-72 (Lamer J. dissenting in part, but not on this point). A blinkered focus on the textual variations might lead to an interpretation at odds with the modern rule because, standing alone, linguistic considerations ought not to elevate an argument about text above the relevant context, purpose and objectives of the legislative scheme: see Sullivan, at p. 116.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-26", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 40", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Here the English version cannot be read so as to compel the court to grant relief: the word “may” is unquestionably permissive. In Bastarache et al., it is said that “the clearer version provides the common meaning” (p. 67), but it cannot be said that the French text here is ambiguous. Accordingly, the linguistic issue must be placed in the framework of the modern rules of statutory interpretation that give effect not only to the text but to context and purpose. There is nothing in the context or purpose of the enactment to suggest a Parliamentary intent to eliminate the long-standing existence of a discretion in judicial review remedies. As mentioned earlier, the principal legislative objective was simply to capture the judicial review of federal decision-makers for the Federal Court. Under the general public law of Canada (then as now), the granting of declarations and the original prerogative and extraordinary remedies, and subsequent statutory variations thereof, have generally been considered to be discretionary, as discussed by Beetz J. in Harelkin. The Federal Court’s discretion in matters of judicial review has repeatedly been affirmed by this Court: see Solosky v. The Queen, [1980] 1 S.C.R. 821, at pp. 830-31; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at pp. 92-93, and Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 77-80. The Federal Courts themselves have repeatedly asserted, notwithstanding the problem posed by the French text of s. 18.1(4), the existence of a discretion in the exercise of their judicial review jurisdiction (and quite properly so in my opinion) both in decisions rendered in French (see, e.g., Canada v.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-27", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 40–42", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Grenier, 2005 CAF 348, [2006] 2 F.C.R. 287, per Létourneau J.A., at para. 40, and Devinat v. Canada (Commission de l’immigration et du status de réfugié), [2000] 2 F.C. 212 (C.A.), per The Court, at para. 73) and in English (see, e.g., Thanabalasingham v. Canada (Minister of Citizenship and Immigration), 2006 FCA 14, 263 D.L.R. (4th) 51, per Evans J.A., at para. 9; Charette v. Canada (Commissioner of Competition), 2003 FCA 426, 29 C.P.R. (4th) 1, per Sexton J.A., at para. 61, and Pal v. Canada (Minister of Employment and Immigration) (1993), 24 Admin. L.R. (2d) 68, per Reed J., at para. 9). I conclude that notwithstanding the bilingual issue in the text, s. 18.1(4) should be interpreted so as to preserve to the Federal Court a discretion to grant or withhold relief, a discretion which, of course, must be exercised judicially and in accordance with proper principles. In my view, those principles include those set out in Dunsmuir.\n\nWith these general observations I turn to the particular paragraphs of s. 18.1(4) of the Federal Courts Act that, in my view, enable but do not require judicial intervention.\n\nSection 18.1(4)(a) provides for relief where a federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; No standard of review is specified. Dunsmuir says that jurisdictional issues command a correctness standard (majority, at para. 59). The Federal Courts Act does not indicate in what circumstances, despite jurisdictional error having been demonstrated, relief may properly be withheld. For that and other issues, resort will have to be had to the common law. See Harelkin, at pp. 575-76.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-28", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 43", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Judicial intervention is also authorized where a federal board, commission or other tribunal (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; No standard of review is specified. On the other hand, Dunsmuir says that procedural issues (subject to competent legislative override) are to be determined by a court on the basis of a correctness standard of review. Relief in such cases is governed by common law principles, including the withholding of relief when the procedural error is purely technical and occasions no substantial wrong or miscarriage of justice (Pal, at para. 9). This is confirmed by s. 18.1(5). It may have been thought that the Federal Court, being a statutory court, required a specific grant of power to “make an order validating the decision” (s. 18.1(5)) where appropriate.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-29", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 44", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Judicial intervention is authorized where a federal board, commission or other tribunal (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; Errors of law are generally governed by a correctness standard. Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 37, for example, held that the general questions of international law and criminal law at issue in that case had to be decided on a standard of correctness. Dunsmuir (at para. 54), says that if the interpretation of the home statute or a closely related statute by an expert decision-maker is reasonable, there is no error of law justifying intervention. Accordingly, para. (c) provides a ground of intervention, but the common law will stay the hand of the judge(s) in certain cases if the interpretation is by an expert adjudicator interpreting his or her home statute or a closely related statute. This nuance does not appear on the face of para. (c), but it is the common law principle on which the discretion provided in s. 18.1(4) is to be exercised. Once again, the open textured language of the Federal Courts Act is supplemented by the common law.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-30", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 45–46", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Judicial intervention is further authorized where a federal board, commission or other tribunal (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; The legislator would have been aware of the great importance attached by some judicial decisions to so-called “jurisdictional fact finding”; see, e.g., Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756, and Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227. Parliament clearly wished to put an end to the tendency of some courts to seize on a “preliminary fact” on which the administrative agency’s decision was said to be based to quash a decision. In Bell, the “jurisdictional fact” was whether the residential accommodation in respect of which a prospective tenant claimed rental discrimination was a “self-contained dwelling unit”. The Court disagreed with the Human Rights Commission, which had “based” its decision on this threshold fact. Viewed in this light, s. 18.1(4)(d) was intended to confirm by legislation what Dickson J. had said in New Brunswick Liquor Corp., namely that judges should “not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (p. 233).\n\nMore generally, it is clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference. This is quite consistent with Dunsmuir. It provides legislative precision to the reasonableness standard of review of factual issues in cases falling under the Federal Courts Act .", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-31", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 47–49", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Paragraph (e) contemplates a question of mixed fact and law namely that the federal board, commission or other tribunal (e) acted, or failed to act, by reason of fraud or perjured evidence; The common law would not allow a statutory decision-maker to rely on fraudulent or perjured testimony. The court would be expected to exercise its discretion in favour of the applicant under para. (e) as well.\n\nSection 18.1(4)(f) permits judicial intervention if the federal board, commission or other tribunal (f) acted in any other way that was contrary to law. A reference to “contrary to law” necessarily includes “law” outside the Federal Courts Act including general principles of administrative law. Paragraph (f) shows, if further demonstration were necessary, that s. 18.1(4) is not intended to operate as a self-contained code, but is intended by Parliament to be interpreted and applied against the backdrop of the common law, including those elements most recently expounded in Dunsmuir.\n\nIn Federal Courts Practice 2009 (2008), B. J. Saunders et al. state, at pp. 112-13: Grounds for Review Section 18.1(4) sets out the grounds which an applicant must establish to succeed on an application for judicial review. The grounds are broadly stated and reflect, generally, the grounds upon which judicial review could be obtained under the prerogative and extraordinary remedies listed in section 18(1). Section 18.1(4)(f) ensures that the Court will not be hindered in developing new grounds for review. [Emphasis added.]", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-32", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 50–51", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "I readily accept, of course, that the legislature can by clear and explicit language oust the common law in this as in other matters. Many provinces and territories have enacted judicial review legislation which not only provide guidance to the courts but have the added benefit of making the law more understandable and accessible to interested members of the public. The diversity of such laws makes generalization difficult. In some jurisdictions (as in British Columbia), the legislature has moved closer to a form of codification than has Parliament in the Federal Courts Act . Most jurisdictions in Canada seem to favour a legislative approach that explicitly identifies the grounds for review but not the standard of review.1 In other provinces, some laws specify “patent unreasonableness”.2 In few of these statutes, however, is the content of the specified standard of review defined, leading to the inference that the legislatures left the content to be supplied by the common law.\n\nAs stated at the outset, a legislature has the power to specify a standard of review, as held in Owen, if it manifests a clear intention to do so. However, where the legislative language permits, the courts (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based on the Dunsmuir teaching of restraint in judicial intervention in administrative matters (as well as other factors such as an applicant’s delay, failure to exhaust adequate alternate remedies, mootness, prematurity, bad faith and so forth). D. Standard of Review Analysis", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-33", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 52–53", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Dunsmuir states that “[c]ourts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures” (para. 27).\n\nThe process of judicial review involves two steps. First, Dunsmuir says that “[a]n exhaustive review is not required in every case to determine the proper standard of review” (para. 57). As between correctness and reasonableness, the “existing jurisprudence may be helpful” (para. 57). And so it is in this case. Dunsmuir renders moot the dispute in the lower courts between patent unreasonableness and reasonableness. No authority was cited to us that suggests a “correctness” standard of review is appropriate for IAD decisions under s. 67(1) (c) of the IRPA . Accordingly, “existing jurisprudence” points to adoption of a “reasonableness” standard.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-34", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 54–55", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "This conclusion is reinforced by the second step of the analysis when jurisprudential categories are not conclusive. Factors then to be considered include: (1) the presence or absence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation; (3) the nature of the question at issue before the IAD; and (4) the expertise of the IAD in dealing with immigration policy (Dunsmuir, at para. 64). Those factors have to be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case. A contextualized approach is required. Factors should not be taken as items on a check list of criteria that need to be individually analysed, categorized and balanced in each case to determine whether deference is appropriate or not. What is required is an overall evaluation. Nevertheless, having regard to the argument made before us, I propose to comment on the different factors identified in Dunsmuir, all of which in my view point to a reasonableness standard.\n\nAs to the presence of a privative clause, s. 162(1) of the IRPA provides that “[e]ach Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”. A privative clause is an important indicator of legislative intent. While privative clauses deter judicial intervention, a statutory right of appeal may be at ease with it, depending on its terms. Here, there is no statutory right of appeal.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-35", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 56–57", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "As to the purpose of the IAD as determined by its enabling legislation, the IAD determines a wide range of appeals under the IRPA , including appeals from permanent residents or protected persons of their deportation orders, appeals from persons seeking to sponsor members of the family class, and appeals by permanent residents against decisions made outside of Canada on their residency obligations, as well as appeals by the Minister against decisions of the Immigration Division taken at admissibility hearings (s. 63). A decision of the IAD is reviewable only if the Federal Court grants leave to commence judicial review (s. 72).\n\nIn recognition that hardship may come from removal, Parliament has provided in s. 67(1)(c) a power to grant exceptional relief. The nature of the question posed by s. 67(1)(c) requires the IAD to be “satisfied that, at the time that the appeal is disposed of . . . sufficient humanitarian and compassionate considerations warrant special relief”. Not only is it left to the IAD to determine what constitute “humanitarian and compassionate considerations”, but the “sufficiency” of such considerations in a particular case as well. Section 67(1)(c) calls for a fact‑dependent and policy‑driven assessment by the IAD itself. As noted in Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, at p. 380, a removal order establishes that, in the absence of some special privilege existing, [an individual subject to a lawful removal order] has no right whatever to remain in Canada. [An individual appealing a lawful removal order] does not, therefore, attempt to assert a right, but, rather, attempts to obtain a discretionary privilege. [Emphasis added.]", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-36", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 58", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The respondent raised no issue of practice or procedure. He accepted that the removal order had been validly made against him pursuant to s. 36(1) of the IRPA . His attack was simply a frontal challenge to the IAD’s refusal to grant him a “discretionary privilege”. The IAD decision to withhold relief was based on an assessment of the facts of the file. The IAD had the advantage of conducting the hearings and assessing the evidence presented, including the evidence of the respondent himself. IAD members have considerable expertise in determining appeals under the IRPA . Those factors, considered altogether, clearly point to the application of a reasonableness standard of review. There are no considerations that might lead to a different result. Nor is there anything in s. 18.1(4) that would conflict with the adoption of a “reasonableness” standard of review in s. 67(1)(c) cases. I conclude, accordingly, that “reasonableness” is the appropriate standard of review. E. Applying the “Reasonableness” Standard", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-37", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 59–61", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.\n\nIn my view, having in mind the considerable deference owed to the IAD and the broad scope of discretion conferred by the IRPA , there was no basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case.\n\nMy colleague Fish J. agrees that the standard of review is reasonableness, but he would allow the appeal. He writes: While Mr. Khosa’s denial of street racing may well evidence some “lack of insight” into his own conduct, it cannot reasonably be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence. [para. 149] I do not believe that it is the function of the reviewing court to reweigh the evidence.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-38", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 62", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is apparent that Fish J. takes a different view than I do of the range of outcomes reasonably open to the IAD in the circumstances of this case. My view is predicated on what I have already said about the role and function of the IAD as well as the fact that Khosa does not contest the validity of the removal order made against him. He seeks exceptional and discretionary relief that is available only if the IAD itself is satisfied that “sufficient humanitarian and compassionate considerations warrant special relief”. The IAD majority was not so satisfied. Whether we agree with a particular IAD decision or not is beside the point. The decision was entrusted by Parliament to the IAD, not to the judges.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-39", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 63", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Dunsmuir majority held: A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47] Dunsmuir thus reinforces in the context of adjudicative tribunals the importance of reasons, which constitute the primary form of accountability of the decision-maker to the applicant, to the public and to a reviewing court. Although the Dunsmuir majority refers with approval to the proposition that an appropriate degree of deference “requires of the courts ‘not submission but a respectful attention to the reasons offered or which could be offered in support of a decision’” (para. 48 (emphasis added)), I do not think the reference to reasons which “could be offered” (but were not) should be taken as diluting the importance of giving proper reasons for an administrative decision, as stated in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43. Baker itself was concerned with an application on “humanitarian and compassionate grounds” for relief from a removal order.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-40", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 64", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "In this case, both the majority and dissenting reasons of the IAD disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome. At the factual level, the IAD divided in large part over differing interpretations of Khosa’s expression of remorse, as was pointed out by Lutfy C.J. According to the IAD majority: It is troublesome to the panel that [Khosa] continues to deny that his participation in a “street-race” led to the disastrous consequences. . . . At the same time, I am mindful of [Khosa’s] show of relative remorse at this hearing for his excessive speed in a public roadway and note the trial judge’s finding of this remorse . . . . This show of remorse is a positive factor going to the exercise of special relief. However, I do not see it as a compelling feature of the case in light of the limited nature of [Khosa’s] admissions at this hearing. [Emphasis added; para. 15.] According to the IAD dissent on the other hand: . . . from early on he [Khosa] has accepted responsibility for his actions. He was prepared to plead guilty to dangerous driving causing death . . . . I find that [Khosa] is contrite and remorseful. [Khosa] at hearing was regretful, his voice tremulous and filled with emotion. . . . . . . The majority of this panel have placed great significance on [Khosa’s] dispute that he was racing, when the criminal court found he was. And while they concluded this was “not fatal” to his appeal, they also determined that his continued denial that he was racing “reflects a lack of insight.” The panel concluded that this “is not to his credit.” The panel found that [Khosa] was remorseful, but concluded it was not a “compelling feature in light of the limited nature of [Khosa’s] admissions”.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-41", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 64–66", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "However I find [Khosa’s] remorse, even in light of his denial he was racing, is genuine and is evidence that [Khosa] will in future be more thoughtful and will avoid such recklessness. [paras. 50-51 and 53-54] It seems evident that this is the sort of factual dispute which should be resolved by the IAD in the application of immigration policy, and not reweighed in the courts.\n\nIn terms of transparent and intelligible reasons, the majority considered each of the Ribic factors. It rightly observed that the factors are not exhaustive and that the weight to be attributed to them will vary from case to case (para. 12). The majority reviewed the evidence and decided that, in the circumstances of this case, most of the factors did not militate strongly for or against relief. Acknowledging the findings of the criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and second of the Ribic factors), it found that the offence of which the respondent was convicted was serious and that the prospects of rehabilitation were difficult to assess (para. 23).\n\nThe weight to be given to the respondent’s evidence of remorse and his prospects for rehabilitation depended on an assessment of his evidence in light of all the circumstances of the case. The IAD has a mandate different from that of the criminal courts. Khosa did not testify at his criminal trial, but he did before the IAD. The issue before the IAD was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other factors, they warranted special relief from a valid removal order. The IAD was required to reach its own conclusions based on its own appreciation of the evidence. It did so.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-42", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 67–69", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "As mentioned, the courts below recognized some merit in Khosa’s complaint. Lutfy C.J. recognized that the majority “chose to place greater weight on his denial that he participated in a race than others might have” (para. 36). Décary J.A. described the majority’s preoccupation with street racing as “some kind of fixation” (para. 18). My colleague Fish J. also decries the weight put on this factor by the majority (para. 141). However, as emphasized in Dunsmuir, “certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions” (para. 47). In light of the deference properly owed to the IAD under s. 67(1) (c) of the IRPA , I cannot, with respect, agree with my colleague Fish J. that the decision reached by the majority in this case to deny special discretionary relief against a valid removal order fell outside the range of reasonable outcomes. V. Disposition\n\nThe appeal is allowed and the decision of the IAD is restored. The following are the reasons delivered by\n\nRothstein J. — I have had the benefit of reading the reasons of my colleague Justice Binnie allowing this appeal. While I concur with this outcome, I respectfully disagree with the majority’s approach to the application of the Dunsmuir standard of review analysis under s. 18.1 of the Federal Courts Act , R.S.C. 1985, c. F-7 (“FCA ”). I. Introduction", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-43", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 70–71", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The central issue in this case is whether the FCA expressly, or by necessary implication, provides the standards of review to be applied on judicial review, and if so, whether this displaces the common law standard of review analysis recently articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The majority is of the view that the Dunsmuir standard of review analysis is to be read into s. 18.1(4) of the FCA . In my view, courts must give effect to the legislature’s words and cannot superimpose on them a duplicative common law analysis. Where the legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge.\n\nSection 18.1(4) of the FCA states: (4) [Grounds of review] The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-44", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 72–73", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The language of s. 18.1(4)(d) makes clear that findings of fact are to be reviewed on a highly deferential standard. Courts are only to interfere with a decision based on erroneous findings of fact where the federal board, commission or other tribunal’s factual finding was “made in a perverse or capricious manner or without regard for the material before it”. By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4). Where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language. The necessary implication is that where Parliament did not provide for a deferential standard, its intent was that no deference be shown. As I will explain, the language and context of s. 18.1(4), and in particular the absence of deferential wording, demonstrates that a correctness standard is to be applied to questions of jurisdiction, natural justice, law and fraud. The language of s. 18.1(4)(d) indicates that deference is only to be applied to questions of fact.\n\nDunsmuir reaffirmed that “determining the applicable standard of review is accomplished by establishing legislative intent” (para. 30). The present majority’s insistence that Dunsmuir applies even where Parliament specifies a standard of review is inconsistent with that search for legislative intent, in my respectful view.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-45", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 74", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Standard of review developed as a means to reconcile the tension that privative clauses create between the rule of law and legislative supremacy: see U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048. “Full” or “strong” privative clauses that purport to preclude the judicial review of a question brought before a reviewing court give rise to this judicial-legislative tension, which deference and standard of review were developed to resolve: see Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, at para. 17, for a discussion of the nature of privative clauses. In my opinion, the application of Dunsmuir outside the strong privative clause context marks a departure from the conceptual and jurisprudential origins of the standard of review analysis.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-46", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 75", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my view, the question of whether the Dunsmuir standard of review analysis applies to judicial review under s. 18.1 of the FCA becomes clear when one examines the conceptual basis for the common law standard of review analysis. As explained in part II, standard of review emerged as a means to reconcile the judicial-legislative tension to which privative clauses gave rise. The legislature’s desire to immunize certain administrative decisions from judicial scrutiny conflicted with the constitutional supervisory role of the courts and, as such, required a juridical response that could reconcile these competing requirements. Deference and standard of review was the result. It was the departure from this conceptual origin that blurred the role of the privative clause as the legislature’s communicative signal of relative expertise, and in doing so, the Court moved away from the search for legislative intent that governs this area. In part III, I refer to this Court’s jurisprudence on the judicial recognition of legislated standards of review. That jurisprudence is clear that courts must give effect to legislated standards of review, subject to any constitutional challenges. In part IV, I explain that having regard to the conceptual origin of standard of review and the jurisprudence on legislated standards of review, s. 18.1(4) of the FCA occupies the field of standard of review and therefore ousts the common law on that question, excepting in cases of a strong privative clause. In part V, I conclude by briefly considering the Immigration Appeal Division (“IAD”) decision in this case. Like the majority, I would allow the appeal. II. The Place of Standard of Review: Reconciling the Judicial-Legislative Tension of the Privative Clause A. The Judicial-Legislative Tension", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-47", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 76", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Absent a privative clause, courts have always retained a supervisory judicial review role. In the provinces, provincial superior courts have inherent jurisdiction and in most, if not all, cases statutory judicial review jurisdiction. In the federal context, the FCA transferred this inherent jurisdiction from the provincial superior courts to the Federal Courts. Where applicable, statutory rights of appeal also grant affected parties the right to appeal an administrative decision to court. This residual judicial review jurisdiction means that courts retained authority to ensure the rule of law even as delegated administrative decision making emerged. La Forest and Iacobucci JJ. acknowledged this in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, when La Forest J. wrote that [i]n the absence of other provisions indicating a disposition to limit judicial review, the normal supervisory role of the courts remains. The administrative tribunal, of course, is authorized to make determinations on these questions, but they are not to be insulated from the general supervisory role of the courts. [p. 584] The legislature was well aware that parties who perceived an administrative injustice would still have recourse to the courts.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-48", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 77", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The question is, however, whether the creation of expert tribunals automatically meant that there was to be some limitation on the judicial review role of the courts, in particular on questions of law. Where the legislature enacted strong privative clauses precluding review for legal error, there is no doubt that this was the legislative intent. In my opinion, the same limit on judicial review cannot be inferred merely from the establishment of a tribunal when the legislature did not seek to immunize the tribunal’s decisions from judicial review. In those cases, the creation of an administrative decision-maker did not by itself give rise to a tension with the supervisory role of the courts.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-49", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 78", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "In contrast, the majority appears to understand the judicial review of administrative decisions as automatically engaging a judicial-legislative tension, which the standard of review analysis seeks to resolve. In Dunsmuir, Bastarache and LeBel JJ., writing for the majority, described this as follows: Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures. [Emphasis added; para. 27.] As I understand this reasoning, the legislature displaced (or attempted to displace) judicial decision making in some areas by creating administrative bodies. From this viewpoint, the standard of review functions as a necessary balancing exercise between the courts’ constitutional exercise of judicial review and the legislative desire to delegate certain powers to administrative bodies.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-50", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 79", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my opinion, in the absence of a strong privative clause such as existed in Dunsmuir, there are important reasons to question whether this view is applicable. Broadly speaking, it is true of course that the creation of expert administrative decision-makers evidenced a legislative intent to displace or bypass the courts as primary adjudicators in a number of areas. As Professor W. A. Bogart notes, “[t]he core idea was that the legislature wanted to regulate some area but wished someone else, an administrative actor, to carry out the regulation for reasons of expertise, expediency, access, independence from the political process, and so forth” (“The Tools of the Administrative State and the Regulatory Mix”, in C. M. Flood and L. Sossin, eds., Administrative Law in Context (2008), 25, at p. 31). It was only with the enactment of privative clauses, however, that the legislature evidenced an intent to oust, or at the very least restrict, the court’s review role.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-51", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 80", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The most obvious case was labour relations. Labour relations boards were created during the First and Second World Wars, in part to stave off labour unrest: see R. J. Charney and T. E. F. Brady, Judicial Review in Labour Law (loose-leaf), at pp. 2-1 to 2-17. In order to protect the boards from judicial intervention, the legislature enacted strong privative clauses. Professor Audrey Macklin notes that “[f]rustrated with judicial hostility toward the objectives of labour relations legislation, the government not only established a parallel administrative regime of labour relations boards, but also enacted statutory provisions that purported to preclude entirely judicial review of the legality of administrative action”: “Standard of Review: The Pragmatic and Functional Test”, in Administrative Law in Context, 197, at p. 199. While there are different types of privative clauses, the labour relations context gave rise to strong privative clauses that typically purported to preclude review not only of factual findings, but also legal and jurisdictional decisions of the tribunal: see Pasiechnyk, at para. 17 (discussing what constitutes a “full” or “true” privative clause).", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-52", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 81", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "In attempting to preclude judicial review, privative clauses gave rise to a tension between the two core pillars of the public law system: legislative supremacy and the judicial enforcement of law: see D. Dyzenhaus, “Disobeying Parliament? Privative Clauses and the Rule of Law”, in R. W. Bauman and T. Kahana, eds., The Least Examined Branch: The Role of Legislatures in the Constitutional State (2006), 499, at p. 500. Strong privative clauses reflected the legislature’s intent to make administrative decisions final and thereby beyond the purview of judicial scrutiny. This conflicts with the rule of law principle of accountability, for which access to courts is necessary. As Professor Mary Liston notes: The risk to the accountability function of the rule of law was that these officials could behave as a law unto themselves because they would be the sole judges of the substantive validity of their own acts. The institutional result of privative clauses was a system of competing and irreconcilable supremacies between the legislative and judicial branches of government. (“Governments in Miniature: The Rule of Law in the Administrative State”, in Administrative Law in Context, 77, at p. 104) Faced with these competing “supremacies”, courts were forced to develop a juridical approach that would reconcile, or at least alleviate, this tension. In Canada, courts opted for the deference approach. B. The Origins of the Standard of Review Analysis: Resolving the Privative Clause Tension", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-53", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 82–83", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The deference approach emerged as a means of reconciling Parliament’s intent to immunize certain administrative decisions from review with the supervisory role of courts in a rule of law system. This approach originated with Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 (“C.U.P.E.”). In reviewing a labour tribunal decision, Dickson J., as he then was, wrote that the privative clause “constitutes a clear statutory direction on the part of the Legislature that public sector labour matters be promptly and finally decided by the [Public Service Labour Relations] Board” (p. 235). The decision of the Board was protected so long as it was not “so patently unreasonable that the Board . . . did ‘something which takes the exercise of its powers outside the protection of the privative or preclusive clause’” (p. 237).\n\nThe deference approach sought to give effect to the legislature’s recognition that the administrative decision-maker had relative expertise on some or all questions. The privative clause indicated the area of tribunal expertise that the legislature was satisfied warranted deference. As Professor Dyzenhaus explains: . . . CUPE involves more than concession. Right at the outset of the development of the idea of deference, it was clear that there was a judicial cession of interpretative authority to the tribunal, within the scope of its expertise — the area of jurisdiction protected by the privative clause. The cession was not total — the tribunal could not be patently unreasonable. But it was significant because it required that judges defer to the administration’s interpretations of the law, except on jurisdictional, constitutional, or constitution like issues. [Emphasis added; p. 512.]", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-54", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 84", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is clear in C.U.P.E. that the deferential approach was contingent upon and shaped by the relevant privative clause. Interpretive authority was only ceded to tribunals in the area “within the scope of its expertise — the area of jurisdiction protected by the privative clause”. A strong privative clause that protected legal as well as factual and discretionary decisions meant that the legislature recognized the tribunal as having relative expertise with respect to all these questions. Dickson J. emphasized that the legislature’s frequent use of privative clauses in the labour relations context was intimately connected to tribunal expertise. He wrote that “[t]he rationale for protection of a labour board’s decisions within jurisdiction is straightforward and compelling. The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations” (p. 235). In other words, tribunal expertise was a compelling rationale for imposing a privative clause. It was not, however, a free-standing basis for deference.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-55", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 85", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "A further step in the development of the deference approach was Bibeault, when this Court introduced the pragmatic and functional approach for determining the appropriate standard of review. The pragmatic and functional approach, now known simply as the standard of review analysis, was intended to focus “the Court’s inquiry directly on the intent of the legislator rather than on interpretation of an isolated provision” (p. 1089). In reviewing a decision-maker protected by a strong privative clause, this more expansive analysis examined “not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal” (p. 1088). Beetz J. emphasized the overarching objective of giving effect to legislative intent while upholding courts’ supervisory role in a rule of law system (see p. 1090).", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-56", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 86", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The reasoning of Gonthier J. in Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722, further reflected this understanding that it is the privative clause that signals when deference is owed and that demarcates the area of relative expertise. Gonthier J. made clear that: Where the legislator has clearly stated that the decision of an administrative tribunal is final and binding, courts of original jurisdiction cannot interfere with such decisions unless the tribunal has committed an error which goes to its jurisdiction. . . . Decisions which are so protected are, in that sense, entitled to a non‑discretionary form of deference because the legislator intended them to be final and conclusive and, in turn, this intention arises out of the desire to leave the resolution of some issues in the hands of a specialized tribunal. [Emphasis added; p. 1744.] Gonthier J.’s statement captured the essential role of the privative clause. Privative clauses indicate the legislature’s intent that administrative decisions made within “the hands of a specialized tribunal” be deemed final and conclusive. It is in these cases that courts must balance their constitutional role to preserve the rule of law with the legislature’s intent to oust the courts’ jurisdiction. Gonthier J.’s reasoning understood expertise as the underlying rationale for enacting the privative clause. Expertise alone was not interpreted as indicating a legislative intent for finality. If the legislature intended to protect expert decision-makers from review, it did so through a privative clause. C. Departure From the Origins of Standard of Review: Expertise as a Stand-Alone Basis for Deference", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-57", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 87", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "However, with Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, there was a departure from the conceptual origin of standard of review I have described. That case involved the judicial review of a tribunal decision that was not protected by a privative clause and in fact was subject to a statutory right of appeal. Relying on the language of “specialization of duties” from Bell Canada, the Court in Pezim imputed relative expertise to the tribunal, including on questions of law, based on its statutory mandates. In Pezim, the Court reviewed the constating statute of the British Columbia Securities Commission and found that “[t]he breadth of the Commission’s expertise and specialisation is reflected in the provisions of the [B.C. Securities Act]” (p. 593). This approach of judicially imputing expertise, even on questions of law, was a departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the legislature’s recognition of relative tribunal expertise.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-58", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 88–89", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "My colleague Binnie J. writes at para. 26 of his reasons that “Pezim has been cited and applied in numerous cases over the last 15 years.” In light of this, he rejects what he sees as my effort “to roll back the Dunsmuir clock”. With respect, I do not believe that the longevity of Pezim should stand in the way of this Court’s recent attempts to return conceptual clarity to the application of standard of review. The fact that Pezim has been cited in other cases does not preclude this Court from revisiting its reasoning where there are compelling reasons to do so: R. v. Robinson, [1996] 1 S.C.R. 683, at para. 46. In my view, Pezim’s departure from the conceptual basis for standard of review constitutes such a compelling reason. In Dunsmuir, this Court recognized that the time had “arrived for a reassessment” of “the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals” (para. 1). Such reassessment should include a return to the conceptual basis for standard of review.\n\nI do not dispute that reviewing courts, whether in the appellate or judicial review contexts, should show deference to lower courts and administrative decision-makers on questions of fact: see Deschamps J. in concurrence in Dunsmuir at para. 161. The principled bases articulated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 13, for deference to judicial triers of fact are also relevant in the administrative review context. Just as judicial triers of fact are better situated to make findings of fact at first instance, so too are tribunals, especially in the area of policy making. In cases involving mixed fact and law, where the legal question cannot be extricated from a factual or policy finding, deference should be shown.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-59", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 90", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "However, where a legal question can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause. The basic rule in the appellate context is that questions of law are to be reviewed on a correctness standard: Housen, at para. 8. The reasons for this are twofold. First, “the principle of universality requires appellate courts to ensure that the same legal rules are applied in similar situations”: Housen, at para. 9. Divergent applications of legal rules undermine the integrity of the rule of law. Dating back to the time of Dicey’s theory of British constitutionalism, almost all rule of law theories include a requirement that each person in the political community be subject to or guided by the same general law: see A. V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed. 1959), at p. 193; L. L. Fuller, The Morality of Law (rev. ed. 1969), at pp. 81-91 (advocating the principle of congruence between official action and declared rule); J. Raz, The Authority of Law: Essays on Law and Morality (1979), at pp. 215-17 (“[s]ince the court’s judgment establishes conclusively what is the law in the case before it, the litigants can be guided by law only if the judges apply the law correctly”). A correctness standard on questions of law is meant, in part, to ensure this universality. Second, appellate and reviewing courts have greater law-making expertise relative to trial judges and administrative decision-makers.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-60", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 90–91", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "As this Court emphasized in Housen: [W]hile the primary role of trial courts is to resolve individual disputes based on the facts before them and settled law, the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application. In order to fulfill the above functions, appellate courts require a broad scope of review with respect to matters of law. [para. 9]\n\nIn the administrative context, unlike the appellate context, the legislature may decide that an administrative decision-maker has superior expertise relative to a reviewing court, including on legal questions. It signals this recognition by enacting a strong privative clause. It is in these cases that the court must undertake a standard of review analysis to determine the appropriate level of deference that is owed to the tribunal. It is not for the court to impute tribunal expertise on legal questions, absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-61", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 92–93", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The distinction between the judicial and legislative roles was further blurred when the privative clause was incorporated into the pragmatic and functional approach in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. Pushpanathan set out the four relevant factors for the standard of review analysis: privative clause, expertise, purpose of the act as a whole and of the provision in particular, and the nature of the problem. Rather than being viewed as the express manifestation of legislative intent regarding deference, the privative clause was now treated simply as one of several factors in the calibration of deference (standard of review). As Professor Macklin notes, “[i]f the privative clause was an exercise in communicating legislative intent about the role of the courts, suffice to say that the message was, if not lost, then at least reformulated in translation” (p. 225). D. Legislative Intent\n\nIn my opinion, recognizing expertise as a free-standing basis for deference on questions that reviewing courts are normally considered to be expert on (law, jurisdiction, fraud, natural justice, etc.) departs from the search for legislative intent that governs this area. As Dunsmuir reaffirmed, the rationale behind the common law standard of review analysis is to give effect to legislative intent (Bastarache and LeBel JJ., at para. 30): see also Pushpanathan, at para. 26 (“[t]he central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed”); C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 149 (standard of review as “seeking the polar star of legislative intent”).", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-62", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 94", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Where the recognition of relative expertise was grounded in the privative clause, the legislature’s intent was clear. Departures from that conceptual basis have led courts to undertake what are often artificial judicial determinations of relative expertise. It seems quite arbitrary, for example, that courts may look at the nature of a tribunal as defined by its enabling statute, but not always conduct a full review of its actual expertise. Should a reviewing court be required to consider the qualifications of administrative decision-makers on questions that courts are normally considered to have superior expertise? For example, should it matter whether or not decision-makers have legal training? In the specific context of statutory interpretation, should the reviewing court scrutinize whether or not the tribunal regularly reviews and interprets particular provisions in its home statute such that it possesses relative expertise with respect to such provisions? See L. Sossin, “Empty Ritual, Mechanical Exercise or the Discipline of Deference? Revisiting the Standard of Review in Administrative Law” (2003), 27 Advocates’ Q. 478, at p. 491 (for a discussion of the judicial determination of expertise).", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-63", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 95–96", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Far from subscribing to the view that courts should be reviewing the actual expertise of administrative decision-makers, it is my position that this is the function of the legislature. In my view, the discordance between imputed versus actual expertise is simply one manifestation of the larger conceptual unhinging of tribunal expertise from the privative clause. The legislatures that create administrative decision-makers are better able to consider the relative qualifications, specialization and day-to-day workings of tribunals, boards and other decision-makers which they themselves have constituted. Where the legislature believes that an administrative decision-maker possesses superior expertise on questions that are normally within the traditional bailiwick of courts (law, jurisdiction, fraud, natural justice, etc.), it can express this by enacting a privative clause.\n\nIn my respectful view, the majority’s common law standard of review approach seeks two polar stars — express legislative intent and judicially determined expertise — that may or may not align. While there was some attempt by the majority in Dunsmuir to reconnect these inquiries, the move has been incomplete. Professor David Mullan notes that “expertise is no longer described as the single most important factor” in Dunsmuir and the privative clause is seen as a “strong indication” of a requirement of deference: “Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let’s Try Again!” (2008), 21 C.J.A.L.P. 117, at pp. 125-26. In my view, it is time for the courts to acknowledge that privative clauses and tribunal expertise are two sides of the same coin. E. Recognizing the Limitation of Common Law Standard of Review Analysis", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-64", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 97", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Standard of review has dominated so much of administrative law jurisprudence and academic writing to date that one might hope it would, by now, provide a cogent and predictable analysis of when courts should adopt a deferential approach to an administrative decision. Dunsmuir demonstrates that this is still not the case. In Dunsmuir, six judges of this Court said that the standard of review applicable to the adjudicator’s legal determination was reasonableness. Three judges found that the standard was correctness. Each group focused on different aspects of the adjudicator’s decision-making process. The majority gave weight to the presence of a strong privative clause, that the adjudicator was imputed to have expertise in interpreting his home statute, that the purpose of the legislation was the timely and binding settlement of disputes, and that the legal question was not outside the specialized expertise of the adjudicator. The minority focused on the relationship between the common law rules relating to dismissal and those under the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25. Because their starting point was the common law, over which the adjudicator was not imputed to have expertise, the minority was of the view that the correctness standard applied.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-65", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 98–99", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "What this demonstrates is that the common law standard of review analysis continues to provide little certainty about which standard will apply in a particular case. How a court will weigh and balance the four standard of review factors remains difficult to predict and therefore more costly to litigate. In my view, it must be recognized that the common law standard of review analysis does not provide for a panacea of rigorous and objective decision making regarding the intensity with which courts should review tribunal decisions. In attempting to reconcile the court’s constitutional role in the face of a strong privative clause, it may be the best that we have at this point. But its application outside the privative clause context is, in my view, of highly questionable efficacy. III. Judicial Recognition of Legislated Standards of Review A. Giving Effect to Legislative Intent\n\nThis Court has considered legislative language similar to that in s. 18.1(4) in previous cases and has held that a common law standard of review analysis is not necessary where the legislature has provided for standards of review. This Court held in R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, that legislative rules specifying standards of review must be given effect by courts, subject to constitutional limits.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-66", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 100–101", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority now attempts to qualify that holding in Owen. In my respectful view, that is ignoring the obvious. The majority insists that although not stated, the “common law of judicial review” was still in play in Owen. Binnie J. writes that “even in the context of a precisely targeted proceeding related to a named adjudicative board, the standard of review was evaluated by reference to the common law of judicial review” (para. 31). In my respectful opinion, to say (or imply) that a Dunsmuir standard of review analysis applies even where the legislature has articulated the applicable standard of review directly contradicts Owen.\n\nThe majority nevertheless implies that even if the Dunsmuir standard of review analysis did not apply in Owen, this was only because of the specificity of s. 672.38 of the Criminal Code , R.S.C. 1985, c. C-46 (see para. 29). That section sets out the standard of review to be applied on judicial review of decisions from Review Boards regarding the liberty of persons found not criminally responsible. The majority contrasts this with s. 18.1 of the FCA , stating that “[r]esort to the general law of judicial review is all the more essential in the case of a provision like s. 18.1 of the [FCA ] which, unlike s. 672 of the Criminal Code , is not limited to particular issues before a particular adjudicative tribunal” (para. 33). Thus, even if one rejects the view that a common law standard of review analysis was present in Owen, the majority still says that the generality of s. 18.1 of the FCA makes it applicable in the present case.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-67", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 102–103", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The problem with this reasoning is that such qualification would seriously undermine the legislature’s ability to introduce greater certainty and predictability into the standard of review process. Drawn to its logical conclusion, in order to displace the Dunsmuir standard of review analysis, the majority’s approach would require legislatures to enact standard of review legislation with respect to every single administrative tribunal or decision-maker and perhaps in relation to every type of decision they make. With respect, this amounts to a serious overreaching of this Court’s role. It fails to respect the legislature’s prerogative to articulate, within constitutional limits, what standard of review should apply to decision-makers that are wholly the products of legislation.\n\nIn discussing British Columbia’s Administrative Tribunals Act, S.B.C. 2004, c. 45 (“B.C. ATA”), Binnie J. notes that “most if not all judicial review statutes are drafted against the background of the common law of judicial review” (para. 19). While I agree with this observation, I disagree with him as to the conclusions that should flow from it. The majority views the common law background as providing an opening for the continued relevance of a common law standard of review analysis. In reference to s. 58(2)(a) of the B.C. ATA, Binnie J. writes: Despite Dunsmuir, “patent unreasonableness” will live on in British Columbia, but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law. [Underlining added; para. 19.]", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-68", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 104–105", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority would allow for recourse to the common law on several fronts. First, Binnie J. states that the common law jurisprudence on the “content” of “patently unreasonable” will be relevant. I agree that the common law will be a necessary interpretive tool where common law expressions are employed by the legislator and are not adequately defined: see R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 434-36; R. v. Holmes, [1988] 1 S.C.R. 914; Waldick v. Malcolm, [1991] 2 S.C.R. 456.\n\nHowever, the majority would also allow for recourse on a second front. Binnie J. says that “the precise degree of deference [patently unreasonable] commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law” (para. 19). It is unclear exactly which principles of administrative law are being referred to. If the reference to general principles of administrative law means there is some sort of spectrum along which patent unreasonableness is to be calibrated, that would be at odds with the B.C. legislature’s codification of discrete standards of review.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-69", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 106", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "With the ATA, the B.C. legislature expressly codified the standards of review. However, in order for legislation to be exhaustive on a particular question, legislatures are not required to expressly oust the common law by statute. In Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, this Court considered whether recourse to the common law duty of fair representation was appropriate where the legislature had created a statutory duty. L’Heureux‑Dubé J., writing for a unanimous Court, emphasized that because the content of the statutory remedy was “identical to the duty at common law”, the “common law duty is therefore not in any sense additive; it is merely duplicative” (p. 1316). The Court went on to hold that the common law duty of fair representation is neither “necessary [nor] appropriate” in circumstances where the statutory duty applies. Parliament has codified the common law duty and provided a new and superior method of remedying a breach. It is therefore reasonable to conclude that while the legislation does not expressly oust the common law duty of fair representation, it does however effect this end by necessary implication . . . . [Emphasis in original; p. 1319.] Thus, while recourse to the common law is appropriate where Parliament has employed common law terms or principles without sufficiently defining them, it is not appropriate where the legislative scheme or provisions expressly or implicitly ousts the relevant common law analysis as is the case with s. 18.1(4) of the FCA . B. The Majority’s Concern With the Rigidity of Legislated Standards Is Misplaced", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-70", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 107–108", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority expresses concern with the rigidity of general legislative schemes in the judicial review context. With respect to the B.C. ATA, Binnie J. writes of the need for a common law analysis that would account for the “diverse circumstances of a large provincial administration” (para. 19). In the federal context, he writes: “It cannot have been Parliament’s intent to create . . . a single, rigid Procrustean standard of decontextualized review . . .” (para. 28). By focussing on the diversity of decision-makers covered by the FCA and the B.C. ATA, the majority’s reasons make prescribed standards appear overly rigid, even arbitrary.\n\nWith respect, the image of the Procrustean bed is misplaced in the judicial review context. The invocation of the Procrustean image with respect to legislated rules creates the impression that the contrasting common law standard of review is operating in a fluid, fully contextualized paradigm. This is not the case. This is not an area where Parliament is imposing rigid conformity against the backdrop of a panoply of common law standards. The potential flexibility of a contextual common law analysis is already limited in the post-Dunsmuir world of two standards. Regardless of what type of decision-maker is involved, whether a Cabinet minister or an entry‑level fonctionnaire (para. 28), the Dunsmuir analysis can only lead to one of two possible outcomes: reasonableness or correctness. And, as the present majority makes clear, these are single standards, not moving points along a spectrum (para. 59).", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-71", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 109–110", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Moreover, the majority’s concerns regarding legislative rigidity are only realized if one accepts that the focus of the analysis should or must be on the type of administrative decision-maker. The majority’s argument is that it cannot have been intended for a range of decision-makers to be subject to the same standards of review. A review of the FCA and the B.C. ATA makes clear, however, that the respective legislatures believed the focus should be on the nature of the question under review (e.g., fact, law, etc.), rather than the nature of the decision-maker. So there is a diversity in these schemes. It just operates according to the type of question being reviewed.\n\nEven given this legislative focus on the type of question under review, it is still not the case that all administrative decision-makers are subject to the same standards of review. Where a decision-maker’s enabling statute purports to preclude judicial review on some or all questions through a privative clause, deference will apply and a Dunsmuir standard of review analysis will be conducted. This is precisely how Parliament has legislated in the FCA context when it intends for greater deference to be shown to certain decision-makers.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-72", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 111", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Canada Labour Code , R.S.C. 1985, c. L-2 , for example, includes a strong privative clause protecting the Canadian Industrial Relations Board from judicial review under the FCA on questions of law and fact. Section 22(1) states: 22. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act. Section 22(1) expressly provides for review on questions of jurisdiction, procedural fairness, fraud or perjured evidence, but excludes review for errors of law or fact through express reference to s. 18.1(4) of the FCA . Where the privative clause applies, i.e. with respect to s. 18.1(4)(c), (d), or (f), the court is faced with a tension between its constitutional review role and legislative supremacy. In such cases, the Dunsmuir analysis applies. There is no role for the Dunsmuir standard of review analysis where s. 22(1) expressly provides for review on questions of jurisdiction, natural justice and fraud. Correctness review applies in these cases.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-73", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 112–113", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "In contrast, the Immigration and Refugee Protection Act , S.C. 2001, c. 27 — the underlying legislation in the present case — does not contain this type of privative clause. Section 162(1) only provides that “[e]ach Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.” Contrary to the implication of the majority reasons, I think it is plain that this privative clause is intended only to differentiate between different levels and tribunals within the immigration regime and provide each with exclusive jurisdiction to hear legal and factual questions. It is not a privative clause that seeks to restrict or preclude judicial review.\n\nThese examples indicate that Parliament has not been unmindful of the issue of standard of review in s. 18.1(4). Where it intends that a tribunal decision reviewed under s. 18.1 be shown deference, Parliament expressly indicates this either in s. 18.1(4) itself, as it has in para. (d) with respect to facts, or in the underlying legislation such as the Canada Labour Code . Where it does not, the courts should undertake their review according to the standards of correctness.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-74", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 114", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "I would note that the B.C. legislature has also turned its mind to these concerns. The B.C. ATA provides for more deferential standards of review where the underlying statute contains a privative clause. By imposing different standards of review depending on whether or not the administrative decision is protected by a privative clause, the legislature differentiates between those expert decisions it wished to protect and those it did not (ss. 58 and 59). The Honourable Geoff Plant indicated this when introducing the B.C. ATA on second reading: For tribunals with specialized expertise, like the Farm Industry Review Board and the Employment Standards Tribunal, this bill generally provides that a court must defer to a tribunal’s decision unless the decision is patently unreasonable or the tribunal has acted unfairly. For other tribunals — including, for example, the mental health review panels — the bill provides that with limited exceptions, a court must adopt a standard of correctness in reviewing the tribunal’s decisions. (Debates of the Legislative Assembly, 5th Sess., 37th Parl., May 18, 2004, at p. 11193)", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-75", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 115–117", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The record of the proceedings of the B.C. legislature also makes clear the legislature’s intent to codify standards of review that would oust a duplicative common law standard of review analysis. The policy rationale for this move was clear. The legislation was aimed at refocussing judicial review litigation on the merits of the case, rather than on the convoluted process of determining and applying the standard of review. The question of what the standard of review should be on a case‑by‑case basis is often interpreted by the courts as a search for legislative intent. . . . Accordingly, searching for that intent tends to be a time‑consuming, expensive and sometimes disruptive exercise. . . . . . . The provisions in this bill that codify the standards of review will shift the focus from what has been largely a scholarly debate about fine points of law to matters of greater immediate concern to the parties in tribunal proceedings. [Emphasis added.] (Debates of the Legislative Assembly, at p. 11193)\n\nIt would be troubling, I believe, to the B.C. legislature to think that, despite its effort to codify standard of review and shift the focus of judicial review to the merits of the case, this Court would re-impose a duplicative Dunsmuir-type analysis in cases arising under the B.C. ATA. IV. Statutory Interpretation of the Federal Courts Act A. Section 18.1(4)\n\nSection 18.1(4) appears at para. 71 above. On my reading, where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-76", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 118", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my opinion, it is useful to analyse s. 18.1(4) by first examining para. (d), which provides for judicial review where the federal board, commission or other tribunal (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; In this paragraph, Parliament has expressly instructed courts to show significant deference to the original decision-maker. The words “in a perverse or capricious manner or without regard for the material before it” are clear and unambiguous. They indicate that on questions of fact, courts are only to interfere in the most egregious cases of erroneous fact finding.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-77", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 119–120", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Binnie J. also finds that “it is clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference” (para. 46). It would seem that in recognizing that the legislature intended a high degree of deference, one would conclude that this provision speaks for itself and ousts a common law standard of review analysis. Yet, Binnie J. still suggests that the provision is merely complementary of the common law, rather than dispositive of the standard of review issue. He writes that s. 18.1(4)(d) “provides legislative precision to the reasonableness standard of review of factual issues” and is “quite consistent with Dunsmuir” (para. 46). By superimposing Dunsmuir, the majority signals that factual decisions are to be reviewed on a reasonableness standard. The question then is whether reasonableness implies the same level of deference as “capricious” and “perverse”. Arguably, a reasonableness review might be less deferential than that intended by the words Parliament used. Regardless of whether that is true or not, there is no justification for imposing a duplicative common law analysis where the statute expressly provides for the standard of review: see Gendron.\n\nBy contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4). Parliament recognized that with respect to factual determinations, a federal board, commission or other tribunal is better situated than a reviewing court. With respect to questions of law, jurisdiction, natural justice, fraud or perjured evidence, the legislation deems courts to have greater expertise than administrative decision-makers.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-78", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 121", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "There is no suggestion in the FCA that reviewing courts should defer on questions of law. Section 18.1(4)(c) provides for review where the federal board, commission or other tribunal (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; I can see no meaningful difference between the terms “the decision is based on a wrong decision on a question of law” which, in Owen, was considered to be sufficient by this Court to determine that a correctness standard of review applied, and “erred in law in making a decision or an order, whether or not the error appears on the face of the record” in s. 18.1(4)(c). Indeed, in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, a unanimous Court thought that the words of s. 18.1(4) were sufficiently clear that “[u]nder these provisions, questions of law are reviewable on a standard of correctness” (para. 37). Mugesera, like this case, was a judicial review of a decision of the IAD.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-79", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 122", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority now attempts to qualify Mugesera by writing that “[e]rrors of law are generally governed by a correctness standard” (para. 44 (emphasis added)). With respect, Mugesera did not qualify its application of the correctness standard of review in interpreting s. 18.1(4)(c). Paragraph 37 of Mugesera states: Applications for judicial review of administrative decisions rendered pursuant to the Immigration Act are subject to s. 18.1 of the Federal Court Act . Paragraphs (c) and (d) of s. 18.1(4), in particular, allow the Court to grant relief if the federal commission erred in law or based its decision on an erroneous finding of fact. Under these provisions, questions of law are reviewable on a standard of correctness. Moreover, contrary to what the present majority implies, the Court in Mugesera did not limit the application of the correctness standard to “the general questions of international law and criminal law at issue in that case” (para. 44 of majority). It is clear that as a matter of statutory interpretation, the Court understood s. 18.1(4)(c) as requiring a correctness review on questions of law. The Court saw no need to impose the common law over what the statute itself dictated.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-80", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 123–124", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The majority nevertheless insists that “para. (c) provides a ground of intervention, but the common law will stay the hand of the judge(s) in certain cases if the interpretation is by an expert adjudicator interpreting his or her home statute or a closely related statute” (para. 44 (emphasis in original)). With respect, there is no authority for this in the legislation. The majority finds their opening in the remedial discretion of s. 18.1(4). Binnie J. writes: “This nuance does not appear on the face of para. (c), but it is the common law principle on which the discretion provided in s. 18.1(4) is to be exercised” (para. 44). As I will explain, the remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the review itself. The bases upon which the remedial discretion is to be exercised are wholly distinct from the common law of standard of review analysis.\n\nParagraphs (a), (b) and (e) of s. 18.1(4) provide for relief where a federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; . . . (e) acted, or failed to act, by reason of fraud or perjured evidence; There is no indication in any of these provisions that the legislature intended for the reviewing court to show any deference to administrative decision-makers in determining questions of jurisdiction, natural justice, procedural fairness and fraud or perjured evidence.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-81", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 125", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 18.1(4)(f) contemplates judicial intervention where the federal board, commission or other tribunal (f) acted in any other way that was contrary to law. The majority writes that s. 18.1(4)(f) “necessarily includes ‘law’ outside the [FCA ]” (para. 48) and therefore demonstrates that “s. 18.1(4) is not intended to operate as a self-contained code, but is intended by Parliament to be interpreted and applied against the backdrop of the common law, including those elements most recently expounded in Dunsmuir” (para. 48). The majority relies on the statement by the authors of Federal Courts Practice 2009 (2008), B. J. Saunders et al., that “[s]ection 18.1(4)(f) ensures that the Court will not be hindered in developing new grounds for review” (para. 49 (emphasis added by Binnie J.)).", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-82", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 126", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is not in dispute that s. 18.1(4) is not intended to operate as a self-contained code. In judicial review of any administrative decision where a legal error is alleged, the court is required to consider whether the decision-maker was in breach of any statutory provision or common law rule that might be relevant. In this regard, I agree that s. 18.1(4)(f) provides for potentially expanded grounds of review. However, that is not the issue in this case. The issue in this case is whether Parliament has legislated exhaustively on the standard of review, so as to oust the Dunsmuir standard of review analysis. Binnie J.’s reliance on Saunders et al.’s discussion of the “grounds of review” under s. 18.1(4) does not address whether the section also provides for standards of review. This is troubling, given that those same commentators find that s. 18.1(4) does provide for standards of review on questions of fact and law. At p. 145 of their text under the title “Grounds for Review — Standard of Review — Generally” in commenting on Mugesera, they write: Under section 18.1(4) (c) and (d) of the Federal Courts Act , questions of law are reviewable on a standard of correctness. On questions of fact, the reviewing court can intervene under section 18.1(4)(d) only if it considers that the tribunal “based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it”.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-83", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 127–128", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "All that s. 18.1(4)(f) provides for is review of legal errors committed by a federal board, commission or other tribunal other than those “in making a decision or an order”, which are already captured under s. 18.1(4)(c): see Morneault v. Canada (Attorney General), [2001] 1 F.C. 30 (C.A.), at para. 44 (“the intent of the paragraph appears to have been to afford a ground that was not otherwise specifically mentioned in subsection 18.1(4)”). A tribunal’s refusal to make a decision or an order, for example, would not come under para. (c). The reference to “acted in any other way that was contrary to law” refers, then, to legal errors that are not captured by s. 18.1(4)(c). It does not provide an opening for a Dunsmuir standard of review analysis. With respect, the majority’s view of s. 18.1(4) ignores the obvious interpretation in search of something that is not there. B. Section 18 and the Origins of the Federal Courts Act\n\nThe majority is of the view that when s. 18.1 was added to the FCA , it “did not have the effect of excluding the common law” (para. 34). It appears that this proposition is intended to act as a platform for the applicability of the common law standard of review analysis. With respect, it is overly broad to suggest that all elements of the common law continued to apply to s. 18.1(4) simply because there were some gaps — for example, criteria in exercising the discretion to withhold relief — which the common law continued to fill. For the reasons I have explained, the FCA occupies the area of standard of review and therefore ousts the application of the common law on this question.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-84", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 129–130", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The genesis of the FCA and its amendments is not in dispute. Section 18 was enacted to transfer jurisdiction from the provincial superior courts to the federal courts for judicial review of federal tribunals, subject to provincial courts retaining a residual jurisdiction to determine the constitutionality and applicability of legislation. Section 18, which refers to the prerogative writs, survives, but no application for judicial review can be made under it. Subsection (3) provides: The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1. Section 18.1 contains the statutory process under which judicial review may be applied for and under which the court exercises its jurisdiction.\n\nThe 1990 amendments were intended to clarify pre-existing procedural confusion about whether the trial or appeal divisions had jurisdiction with regard to particular applications for judicial review. The amendments also aimed to simplify the procedure for obtaining a remedy by requiring that it be sought by way of application for judicial review, rather than by way of statement of claim or originating notice of motion as had been the prior practice: D. Sgayias et al., Federal Court Practice 1998 (1997), at pp. 69-70. As reform legislation, the amendments did not concern the standard of review. C. The Implications of Section 18.1(4) Remedial Discretion", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-85", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 131–132", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "I agree with Binnie J.’s bilingual analysis and conclusion that, “notwithstanding the bilingual issue in the text, s. 18.1(4) should be interpreted so as to preserve to the Federal Court a discretion to grant or withhold relief” (para. 40). The pertinent question is what should form the basis for the exercise of that judicial discretion. Relief on judicial review is equitable. The discretion in s. 18.1(4) recognizes that it may be inappropriate to grant equitable relief in some cases. This remedial discretion allows a reviewing judge to withhold relief in certain cases. It does not concern the review itself, however.\n\nThe majority says that the FCA does not “indicate in what circumstances . . . relief may properly be withheld” (para. 42). It is true that the legislation does not provide for criteria according to which reviewing courts should exercise their discretion to withhold relief. In the context of this specific gap, I agree with the majority that “resort will have to be had to the common law” (para. 42). The pertinent question is which part of the common law is relevant to the withholding of relief by the court on judicial review.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-86", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 133–134", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Binnie J. attempts to ground the court’s remedial discretion to withhold relief in general judicial review principles. He states at para. 36 that the court’s exercise of the s. 18.1(4) discretion “will depend on the court’s appreciation of the respective roles of the courts and the administration as well as the ‘circumstances of each case’: see Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 575.” He cites Brown and Evans’ observation that “whenever the court exercises its discretion to deny relief, balance of convenience considerations are involved” (para. 36); D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 3-99. While “the discretion must be exercised judicially”, Binnie J. finds that “the general principles of judicial review dealt with in Dunsmuir provide elements of the appropriate judicial basis for its exercise” (para. 36).\n\nBy linking remedial discretion to Dunsmuir “general principles of judicial review”, Binnie J. conflates standard of review (deference) with the granting of relief. In doing so, he effectively reads in an opening for recourse to the common law standard of review analysis. He relies on the specific gap regarding the discretion to grant relief to impute a wider gap regarding standard of review.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-87", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 135–136", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "With respect, this is not the nature of the discretion under s. 18.1(4). The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies: Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326, at p. 364. As Harelkin affirmed, at p. 575, courts may exercise their discretion to refuse relief to applicants “if they have been guilty of unreasonable delay or misconduct or if an adequate alternative remedy exists, notwithstanding that they have proved a usurpation of jurisdiction by the inferior tribunal or an omission to perform a public duty”. As in the case of interlocutory injunctions, courts exercising discretion to grant relief on judicial review will take into account the public interest, any disproportionate impact on the parties and the interests of third parties. This is the type of “balance of convenience” analysis to which Brown and Evans were referring.\n\nThus, the discretion contained in s. 18.1(4) speaks to the withholding of relief in appropriate cases; it does not engage the question of standard of review. Reliance upon it by the majority to support the view that it opens the door to the Dunsmuir standard of review analysis is, with respect, misplaced. In my view, the Dunsmuir standard of review should be confined to cases in which there is a strong privative clause. Excepting such cases, it does not apply to s. 18.1(4) of the FCA . V. Decision in This Case", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-88", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 137–140", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "In determining whether the respondent was eligible for the special relief available under s. 67(1) (c) of the Immigration and Refugee Protection Act , the IAD acknowledged that its discretion should be exercised with consideration for the criteria set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL) (endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84). The majority of the IAD expressly referred to the Ribic factors and, in my view, had regard to those it considered relevant in exercising its discretion. The actual application of the Ribic factors to the case before it and its exercise of discretion is fact-based. I do not find that the factual findings of the IAD were perverse or capricious or were made without regard to the evidence. I would allow the appeal. The following are the reasons delivered by\n\nDeschamps J. — I agree with Rothstein J. that since s. 18.1(4) of the Federal Courts Act , R.S.C. 1985, c. F-7 , sets legislated standards of review, those standards oust the common law. Consequently, I agree with Parts III, IV and V of his reasons and would also allow the appeal. The following are the reasons delivered by Fish J. (dissenting) — I\n\nThis appeal raises two issues. The first concerns the standard of review with respect to decisions of the Immigration Appeal Division (“IAD”). In that regard, I agree with Justice Binnie that the standard of review is “reasonableness”.\n\nThe second issue is whether the majority decision of the IAD in this case survives judicial scrutiny under that standard. Unlike Justice Binnie, and with the greatest of respect, I have concluded that it does not.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-89", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 141–145", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Essentially, I find that the decision of the IAD rests on what the Court of Appeal has aptly described as a “fixation” that collides with the overwhelming weight of the uncontradicted evidence in the record before it. I agree with the majority below that the decision, for this reason, cannot stand.\n\nAccordingly, I would dismiss the appeal. II\n\nIn 2000, when he was 18 years old, Sukhvir Singh Khosa caused the death of Irene Thorpe by driving recklessly at more than twice the speed limit, losing control of his automobile and running it off the roadway. He had by then been living in Canada for four years. When his appeal to the IAD was decided in 2004, he was 22 and married. Four more years have elapsed since then.\n\nTo order Mr. Khosa’s removal would separate him from his wife and immediate family. It would return him to a country he has visited only once since emigrating at the age of 14 and where he appears to have few relatives.\n\nThe IAD’s task in this case is to look to “all the circumstances of the case” in order to determine whether “sufficient humanitarian and compassionate considerations” existed to warrant relief from a removal order: Immigration and Refugee Protection Act , S.C. 2001, c. 27, s. 67(1) (c). The IAD is bound in performing that function to consider the various factors set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 90. The IAD in this case placed the greatest emphasis on the factors of remorse, rehabilitation, and likelihood of reoffence.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-90", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "para 146", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "With respect to these factors, the record before the IAD consisted essentially of the following uncontested and uncontradicted evidence: · The sentencing judge found that “by his actions immediately after learning of Ms. Thorpe’s death and since the accident . . . he has expressed remorse” (R. v. Khosa, 2003 BCSC 221, [2003] B.C.J. No. 280 (QL), at para. 56). · Mr. Khosa took responsibility for his crime early, expressing a desire to attend the funeral of the woman he had killed and offering — before any arraignment or preliminary inquiry — to plead guilty to dangerous driving causing death. · The sentencing judge found that “[i]n the more than two years that have passed since the accident, Mr. Khosa has not left the house except to go to work, to school, or the Sikh temple. He normally does not drink. He does not take drugs. He has no criminal record. He has no driving record. He has complied with all of his bail conditions and is not likely to re-offend” (para. 55 (emphasis added)). · Mr. Khosa had not driven a car since the accident, even though he was permitted to do so for some months thereafter. · Mr. Khosa’s probation officer concluded from close and extensive contact with Mr. Khosa that he “appears to be making a sincere effort to maintain a stable and responsible life style in which he is a contributing member of the community”. The probation officer also reported that he has “demonstrated a very positive attitude towards community supervision [and] willingly conforms to the expectations, requirements, and restrictions of the Conditional Sentence”. With respect to his character, the probation officer was of the view that Mr. Khosa “presents as a pro‑social young man who values work, family, community and religion” (Appellant’s Record, at p. 355). · Mr.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-91", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 146–149", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Khosa had no previous criminal or driving convictions whatever. · Mr. Khosa had complied with all provisions of his conditional sentence. · Several employers wrote letters describing Mr. Khosa as conscientious and reliable.\n\nDespite all of this evidence indicating that Mr. Khosa was extremely unlikely to reoffend and had taken responsibility for his actions, the majority at the IAD seized upon one consideration: Mr. Khosa’s denial that he was “street-racing” at the time the accident occurred. Apart from a brief mention of Mr. Khosa’s “show of relative remorse at [the] hearing” ([2004] I.A.D.D. No. 1268 (QL), at para. 15), and a passing allusion to the judgments of the criminal courts to his culpability (para. 14), Mr. Khosa’s denial was the only consideration that the IAD majority considered with respect to these issues. Manifestly, this solitary fact was the decisive element — if not the sole basis — upon which the majority of the IAD denied Mr. Khosa’s basis for all humanitarian and compassionate relief.\n\nSo much cannot reasonably be made out of so little. III\n\nWhile Mr. Khosa’s denial of street racing may well evidence some “lack of insight” into his own conduct, it cannot reasonably be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-92", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 150–152", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "The IAD’s cursory treatment of the sentencing judge’s findings on remorse and the risk of recidivism are particularly troubling. While findings of the criminal courts are not necessarily binding upon an administrative tribunal with a distinct statutory purpose and a different evidentiary record, it was incumbent upon the IAD to consider those findings and to explain the basis of its disagreement with the decision of the sentencing judge. The majority decision at the IAD mentions only in passing the favourable findings of the criminal courts and does not explain at all its disagreement with them.\n\nMoreover, Mr. Khosa’s denial of street racing is, at best, of little probative significance in determining his remorse, rehabilitation and likelihood of reoffence. In light, particularly, of the extensive, uncontradicted and unexplained evidence to the contrary, Mr. Khosa’s denial of street racing cannot reasonably support the inference drawn from it by the majority in the IAD.\n\nIt is also important to note that street racing was not a necessary element of Mr. Khosa’s crime of criminal negligence causing death (R. v. Khosa, 2003 BCCA 644, 190 B.C.A.C. 23, at para. 85). It appears that Mr. Khosa’s refusal to accept his guilty verdict on this charge — in contrast with his willingness to plead guilty to the less serious charge of dangerous driving causing death — is due solely to his mistaken impression that the former requires a finding that he was racing (Appellant’s Record, at p. 145). This is therefore not a case where a person in deportation proceedings maintains his innocence, as suggested by the majority of the IAD (at para. 14), but rather a case where the immigrant simply disputes an ancillary finding of the criminal court.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-93", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 153–156", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "Whatever the correct interpretation of Mr. Khosa’s denial that he was street-racing, it is clear that the majority at the IAD had “some kind of fixation” — to again borrow the phrase of the majority below — with this piece of evidence, and based its refusal to grant humanitarian and compassionate relief largely on this single fact.\n\nThe majority at the IAD made repeated reference to the denial. Toward the end of its decision, it stated that in light of Mr. Khosa’s “failure . . . to acknowledge his conduct and accept responsibility for . . . street-racing . . ., there is insufficient evidence upon which I can make a determination that [Mr. Khosa] does not represent a present risk to the public” (para. 23 (emphasis added)). I find that this conclusion is not only incorrect, but unreasonable. There was ample evidence suggesting that he posed no risk. The majority decision of the IAD simply disregarded virtually all of that evidence.\n\nLater, in justifying its decision to deny all relief rather than order a stay of removal, the majority wrote that Mr. Khosa’s “failure to acknowledge or take responsibility for his specific reckless conduct does not suggest that any purpose would be served by staying the present removal order” (para. 24). Here, again, the decision of the IAD majority transforms a limited, specific and ancillary denial into a general failure to take responsibility.\n\nThe majority’s inordinate focus on racing and its failure to consider contrary evidence do not “fit comfortably with the principles of justification, transparency and intelligibility” that are required in order to withstand reasonableness review (reasons of Binnie J., at para. 59).", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-6901-94", + "doc_type": "caselaw", + "act_code": "2009 SCC 12", + "act_short": "Khosa", + "act_name": "Canada (Citizenship and Immigration) v. Khosa", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12", + "marginal_note": "paras 157–161", + "heading": "Standard of review of immigration decisions; judicial review of a removal order", + "part": "Supreme Court of Canada", + "division": "", + "text": "With respect, I thus feel bound to conclude that the IAD was unreasonable in its evaluation of Mr. Khosa’s rehabilitation, remorse and likelihood of reoffence. IV\n\nBecause the IAD’s finding on these specific factors was central to its ultimate decision to deny any and all humanitarian and compassionate relief, the IAD’s determination cannot be sustained.\n\nTo be sure, the majority at the IAD stated that even if it were to have found that Mr. Khosa did not present a risk to the public “in balancing all the relevant factors, I determine the scale does not tip in [Mr. Khosa’s] favour and decline to exercise favourable discretion” (para. 23). This sort of conclusory statement, however, cannot insulate the IAD’s decision from review when the rest of its reasons demonstrate that its decision rests on an unreasonable determination of central importance, as in this case.\n\nI agree that decisions of the IAD are entitled to deference. In my respectful view, however, deference ends where unreasonableness begins. V\n\nFor all these reasons, as stated at the outset, I would dismiss the appeal and affirm the judgment of the Court of Appeal returning this matter to the IAD for reconsideration before a differently constituted panel. Appeal allowed, Fish J. dissenting.", + "current_to": "2009-03-06", + "last_amended": "", + "history": "Also reported: [2009] 1 SCR 339", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" + }, + { + "id": "scc-2345-1", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 1–2", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "One of the most fundamental responsibilities of a government is to ensure the security of its citizens. This may require it to act on information that it cannot disclose and to detain people who threaten national security. Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. These two propositions describe a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance.\n\nIn this case, we are confronted with a statute, the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), that attempts to resolve this tension in the immigration context by allowing the Minister of Citizenship and Immigration (the “Minister”), and the Minister of Public Safety and Emergency Preparedness (collectively “the ministers”) to issue a certificate of inadmissibility leading to the detention of a permanent resident or foreign national deemed to be a threat to national security. The certificate and the detention are both subject to review by a judge, in a process that may deprive the person named in the certificate of some or all of the information on the basis of which the certificate was issued or the detention ordered. The question is whether the solution that Parliament has enacted conforms to the Constitution, and in particular the guarantees in the Canadian Charter of Rights and Freedoms that protect against unjustifiable intrusions on liberty, equality and the freedom from arbitrary detention and from cruel and unusual treatment.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-2", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 3–4", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "I conclude that the IRPA unjustifiably violates s. 7 of the Charter by allowing the issuance of a certificate of inadmissibility based on secret material without providing for an independent agent at the stage of judicial review to better protect the named person’s interests. I also conclude that some of the time limits in the provisions for continuing detention of a foreign national violate ss. 9 and 10(c) because they are arbitrary. I find that s. 12 has not been shown to be violated since a meaningful detention review process offers relief against the possibility of indefinite detention. Finally, I find that there is no breach of the s. 15 equality right. II. Background\n\nThe provisions of the IRPA at issue in this case, reproduced in the Appendix, are part of Canada’s immigration law. Their purpose is to permit the removal of non-citizens living in Canada — permanent residents and foreign nationals — on various grounds, including connection with terrorist activities. The scheme permits deportation on the basis of confidential information that is not to be disclosed to the person named in the certificate or anyone acting on the person’s behalf or in his or her interest. The scheme was meant to “facilitat[e] the early removal of persons who are inadmissible on serious grounds, including persons posing a threat to the security of Canada” (Clause by Clause Analysis (2001), at p. 72). In reality, however, it may also lead to long periods of incarceration.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-3", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 5", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The IRPA requires the ministers to sign a certificate declaring that a foreign national or permanent resident is inadmissible to enter or remain in Canada on grounds of security, among others: s. 77. A judge of the Federal Court then reviews the certificate to determine whether it is reasonable: s. 80. If the state so requests, the review is conducted in camera and ex parte. The person named in the certificate has no right to see the material on the basis of which the certificate was issued. Non-sensitive material may be disclosed; sensitive or confidential material must not be disclosed if the government objects. The named person and his or her lawyer cannot see undisclosed material, although the ministers and the reviewing judge may rely on it. At the end of the day, the judge must provide the person with a summary of the case against him or her — a summary that does not disclose material that might compromise national security. If the judge determines that the certificate is reasonable, there is no appeal and no way to have the decision judicially reviewed: s. 80(3).", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-4", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 6", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The consequences of the issuance and confirmation of a certificate of inadmissibility vary, depending on whether the person is a permanent resident of Canada or a foreign national whose right to remain in Canada has not yet been confirmed. Permanent residents who the ministers have reasonable grounds to believe are a danger to national security may be held in detention. In order to detain them, the ministers must issue a warrant stating that the person is a threat to national security or to another person, or is unlikely to appear at a proceeding or for removal. Foreign nationals, meanwhile, must be detained once a certificate is issued: under s. 82(2), the detention is automatic. While the detention of a permanent resident must be reviewed within 48 hours, a foreign national, on the other hand, must apply for review, but may not do so until 120 days after a judge of the Federal Court determines the certificate to be reasonable. In both cases, if the judge finds the certificate to be reasonable, it becomes a removal order. Such an order deprives permanent residents of their status; their detention is then subject to review on the same basis as that of other foreign nationals.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-5", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 7–9", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The removal order cannot be appealed and may be immediately enforced, thus eliminating the requirement of holding or continuing an examination or an admissibility hearing: s. 81(b). The detainee, whether a permanent resident or a foreign national, may no longer apply for protection: s. 81(c). Additionally, a refugee or a protected person determined to be inadmissible on any of the grounds for a certificate loses the protection of the principle of non-refoulement under s. 115(1) if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada: s. 115(2). This means that he or she may, at least in theory, be deported to torture.\n\nA permanent resident detained under a certificate is entitled to a review of his or her detention every six months. Under s. 83(3), a judge must order the detention of a permanent resident to be continued if the judge is satisfied that the person continues to pose a danger to security or to the safety of another, or is unlikely to appear at a proceeding or for removal.\n\nThe detention of foreign nationals, on the other hand, is mandatory. If a foreign national has not been removed within 120 days of the certificate being found reasonable by a judge, however, the judge may order the person released on appropriate conditions if “satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person”: s. 84(2). Even if released, the foreign national may be deported.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-6", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 10", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Charkaoui is a permanent resident, while Messrs. Harkat and Almrei are foreign nationals who had been recognized as Convention refugees. All were living in Canada when they were arrested and detained. At the time of the decisions on appeal, all had been detained for some time — since 2003, 2002 and 2001 respectively. In 2001, a judge of the Federal Court determined Mr. Almrei’s certificate to be reasonable; another determined Mr. Harkat’s certificate to be reasonable in 2005. The reasonableness of Mr. Charkaoui’s certificate has yet to be determined. Messrs. Charkaoui and Harkat were released on conditions in 2005 and 2006 respectively, but Mr. Harkat has been advised that he will be deported to Algeria, which he is contesting in other proceedings. Mr. Almrei remains in detention. In all these cases, the detentions were based on allegations that the individuals constituted a threat to the security of Canada by reason of involvement in terrorist activities. In the course of their detentions, all three appellants challenged, unsuccessfully, the constitutionality of the IRPA ’s certificate scheme and detention review process. III. Issues", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-7", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 11", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellants argue that the IRPA ’s certificate scheme under which their detentions were ordered is unconstitutional. They argue that it violates five provisions of the Charter : the s. 7 guarantee of life, liberty and security of the person; the s. 9 guarantee against arbitrary detention; the s. 10(c) guarantee of a prompt review of detention; the s. 12 guarantee against cruel and unusual treatment; and the s. 15 guarantee of equal protection and equal benefit of the law. They also allege violations of unwritten constitutional principles. I discuss these claims under the following headings: A. Does the procedure under the IRPA for determining the reasonableness of the certificate infringe s. 7 of the Charter , and if so, is the infringement justified under s. 1 of the Charter ? B. Does the detention of permanent residents or foreign nationals under the IRPA infringe ss. 7 , 9 , 10( c ) or 12 of the Charter , and if so, are the infringements justified under s. 1 of the Charter ? C. Do the certificate and detention review procedures discriminate between citizens and non-citizens, contrary to s. 15 of the Charter , and if so, is the discrimination justified under s. 1 of the Charter ? D. Are the IRPA certificate provisions inconsistent with the constitutional principle of the rule of law? A. Does the Procedure Under the IRPA for Determining the Reasonableness of the Certificate Infringe Section 7 of the Charter , and if so, Is the Infringement Justified Under Section 1 of the Charter ? 1. Is Section 7 of the Charter Engaged?", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-8", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 12–13", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 7 of the Charter guarantees the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. This requires a claimant to prove two matters: first, that there has been or could be a deprivation of the right to life, liberty and security of the person, and second, that the deprivation was not or would not be in accordance with the principles of fundamental justice. If the claimant succeeds, the government bears the burden of justifying the deprivation under s. 1, which provides that the rights guaranteed by the Charter are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.\n\nThe provisions at issue, found at Division 9 of Part 1 of the IRPA , clearly deprive detainees such as the appellants of their liberty. The person named in a certificate can face detention pending the outcome of the proceedings. In the case of a foreign national, this detention is automatic and lasts at least until 120 days after the certificate is deemed reasonable. For both foreign nationals and permanent residents, the period of detention can be, and frequently is, several years. Indeed, Mr. Almrei remains in detention and does not know when, if ever, he will be released.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-9", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 14–15", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The detainee’s security may be further affected in various ways. The certificate process may lead to removal from Canada, to a place where his or her life or freedom would be threatened: see e.g. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 207, per Wilson J. A certificate may bring with it the accusation that one is a terrorist, which could cause irreparable harm to the individual, particularly if he or she is eventually deported to his or her home country. Finally, a person who is determined to be inadmissible on grounds of security loses the protection of s. 115(1) of the IRPA , which means that under s. 115(2), he or she can be deported to torture if the Minister is of the opinion that the person is a danger to the security of Canada.\n\nIn Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, this Court stated, at para. 76, that “barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter .” More recently, the Federal Court has ruled that another certificate detainee is at risk of torture if deported, and that there were no exceptional circumstances justifying such a deportation: Jaballah (Re) (2006), 148 C.R.R. (2d) 1, 2006 FC 1230. The appellants claim that they would be at risk of torture if deported to their countries of origin. But in each of their cases, this remains to be proven as part of an application for protection under the provisions of Part 2 of the IRPA . The issue of deportation to torture is consequently not before us here.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-10", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 16–17", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The individual interests at stake suggest that s. 7 of the Charter , the purpose of which is to protect the life, liberty and security of the person, is engaged, and this leads directly to the question whether the IRPA ’s impingement on these interests conforms to the principles of fundamental justice. The government argues, relying on Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, 2005 SCC 51, that s. 7 does not apply because this is an immigration matter. The comment from that case on which the government relies was made in response to a claim that to deport a non-citizen violates s. 7 of the Charter . In considering this claim, the Court, per McLachlin C.J., noted, at para. 46, citing Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733, that “[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada”. The Court added: “Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7” (Medovarski, at para. 46 (emphasis added)).\n\nMedovarski thus does not stand for the proposition that proceedings related to deportation in the immigration context are immune from s. 7 scrutiny. While the deportation of a non-citizen in the immigration context may not in itself engage s. 7 of the Charter , some features associated with deportation, such as detention in the course of the certificate process or the prospect of deportation to torture, may do so.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-11", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 18–19", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "In determining whether s. 7 applies, we must look at the interests at stake rather than the legal label attached to the impugned legislation. As Professor Hamish Stewart writes: Many of the principles of fundamental justice were developed in criminal cases, but their application is not restricted to criminal cases: they apply whenever one of the three protected interests is engaged. Put another way, the principles of fundamental justice apply in criminal proceedings, not because they are criminal proceedings, but because the liberty interest is always engaged in criminal proceedings. [Emphasis in original.] (“Is Indefinite Detention of Terrorist Suspects Really Constitutional?” (2005), 54 U.N.B.L.J. 235, at p. 242) I conclude that the appellants’ challenges to the fairness of the process leading to possible deportation and the loss of liberty associated with detention raise important issues of liberty and security, and that s. 7 of the Charter is engaged. 2. How Do Security Considerations Affect the Section 7 Analysis?\n\nSection 7 of the Charter requires that laws that interfere with life, liberty and security of the person conform to the principles of fundamental justice — the basic principles that underlie our notions of justice and fair process. These principles include a guarantee of procedural fairness, having regard to the circumstances and consequences of the intrusion on life, liberty or security: Suresh, at para. 113.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-12", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 20–21", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake: United States of America v. Ferras, [2006] 2 S.C.R. 77, 2006 SCC 33, at para. 14; R. v. Rodgers, [2006] 1 S.C.R. 554, 2006 SCC 15, at para. 47; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at pp. 656-57. The procedures required to meet the demands of fundamental justice depend on the context (see Rodgers; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361; Chiarelli, at pp. 743-44; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41, at paras. 20-21). Societal interests may be taken into account in elucidating the applicable principles of fundamental justice: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 98.\n\nUnlike s. 1, s. 7 is not concerned with whether a limit on life, liberty or security of the person is justified, but with whether the limit has been imposed in a way that respects the principles of fundamental justice. Hence, it has been held that s. 7 does not permit “a free‑standing inquiry . . . into whether a particular legislative measure ‘strikes the right balance’ between individual and societal interests in general” (Malmo-Levine, at para. 96). Nor is “achieving the right balance . . . itself an overarching principle of fundamental justice” (ibid.). As the majority in Malmo-Levine noted, to hold otherwise “would entirely collapse the s. 1 inquiry into s. 7” (ibid.). This in turn would relieve the state from its burden of justifying intrusive measures, and require the Charter complainant to show that the measures are not justified.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-13", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 22–24", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The question at the s. 7 stage is whether the principles of fundamental justice relevant to the case have been observed in substance, having regard to the context and the seriousness of the violation. The issue is whether the process is fundamentally unfair to the affected person. If so, the deprivation of life, liberty or security of the person simply does not conform to the requirements of s. 7. The inquiry then shifts to s. 1 of the Charter , at which point the government has an opportunity to establish that the flawed process is nevertheless justified having regard, notably, to the public interest.\n\nIt follows that while administrative constraints associated with the context of national security may inform the analysis on whether a particular process is fundamentally unfair, security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the s. 7 stage of the analysis. If the context makes it impossible to adhere to the principles of fundamental justice in their usual form, adequate substitutes may be found. But the principles must be respected to pass the hurdle of s. 7. That is the bottom line.\n\nIn the instant case, the context is the detention, incidental to their removal or an attempt to remove them from the country, of permanent residents and foreign nationals who the ministers conclude pose a threat to national security. This context may impose certain administrative constraints that may be properly considered at the s. 7 stage. Full disclosure of the information relied on may not be possible. The executive branch of government may be required to act quickly, without recourse, at least in the first instance, to the judicial procedures normally required for the deprivation of liberty or security of the person.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-14", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 25", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "At the same time, it is a context that may have important, indeed chilling, consequences for the detainee. The seriousness of the individual interests at stake forms part of the contextual analysis. As this Court stated in Suresh, “[t]he greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter ” (para. 118). Thus, “factual situations which are closer or analogous to criminal proceedings will merit greater vigilance by the courts”: Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1077, per Iacobucci J.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-15", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 26", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The potential consequences of deportation combined with allegations of terrorism have been under a harsh spotlight due to the recent report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Mr. Arar, a Canadian citizen born in Syria, was detained by American officials and deported to Syria. The report concludes that it is “very likely that, in making the decisions to detain and remove Mr. Arar to Syria, the U.S. authorities relied on information about Mr. Arar provided by the RCMP”, including unfounded suspicions linking Mr. Arar to terrorist groups: Report of the Events Relating to Maher Arar: Analysis and Recommendations (2006) (“Arar Inquiry”), at p. 30. In Syria, Mr. Arar was tortured and detained under inhumane conditions for over 11 months. In his report, Commissioner O’Connor recommends enhanced review and accountability mechanisms for agencies dealing with national security, including not only the Royal Canadian Mounted Police, but also Citizenship and Immigration Canada and the Canada Border Services Agency. He notes that these immigration-related institutions can have an important impact on individual rights but that there is a lack of transparency surrounding their activities because their activities often involve sensitive national security information that cannot be disclosed to the public: A New Review Mechanism for the RCMP’s National Security Activities (2006), at pp. 562-65. Moreover, the sensitive nature of security information means that investigations lead to fewer prosecutions. This, in turn, restricts the ability of courts to guarantee individual rights: “Unless charges are laid, . . .", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-16", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 26–28", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "the choice of investigative targets, methods of information collection and exchange, and means of investigation generally will not be subject to judicial scrutiny, media coverage or public debate” (p. 439).\n\nThe procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of s. 7. The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of s. 7 of the Charter . The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy s. 7, meaningful and substantial protection there must be. 3. Relevant Principles of Fundamental Justice\n\nThe overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46. “It is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law, which must involve a meaningful judicial process”: Ferras, at para. 19. This principle emerged in the era of feudal monarchy, in the form of the right to be brought before a judge on a motion of habeas corpus. It remains as fundamental to our modern conception of liberty as it was in the days of King John.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-17", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 29–31", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. And it entails the right to know the case put against one, and the right to answer that case. Precisely how these requirements are met will vary with the context. But for s. 7 to be satisfied, each of them must be met in substance.\n\nThe IRPA process includes a hearing. The process consists of two phases, one executive and one judicial. There is no hearing at the executive phase that results in issuance of the certificate. However, this is followed by a review before a judge, where the named person is afforded a hearing. Thus, the first requirement, that of a hearing, is met.\n\nQuestions arise, however, on the other requirements, namely: that the judge be independent and impartial; that the judge make a judicial decision based on the facts and the law; and finally, that the named person be afforded an opportunity to meet the case put against him or her by being informed of that case and being allowed to question or counter it. I conclude that the IRPA scheme meets the first requirement of independence and impartiality, but fails to satisfy the second and third requirements, which are interrelated here. 4. Is the Judge Independent and Impartial?", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-18", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 32–34", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although the scope of the required hearing can vary according to context (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817), a hearing must include “[a]n independent judicial phase and an impartial judge” (Ferras, at para. 25). This requirement is also consistent with the unwritten constitutional principle of judicial independence: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3. It has also been called “the cornerstone of the common law duty of procedural fairness” (Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, 2004 SCC 42 (“Re Bagri”), at para. 81), and is necessary in order to ensure judicial impartiality: R. v. Lippé, [1991] 2 S.C.R. 114, at p. 139. It is not enough that the judge in fact be independent and impartial; fundamental justice requires that the judge also appear to be independent and impartial. This flows from the fact that judicial independence has two facets: actual independence and perceived independence (Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 689).\n\nThe IRPA scheme provides for the certificate issued by the ministers to be reviewed by a “designated judge”, a judge of the Federal Court of Canada. The question here is whether, from an institutional perspective, the role assigned to designated judges under the IRPA leads to a perception that independence and impartiality are compromised.\n\nThe designated judge has been aptly described as the “cornerstone of the procedure established by Parliament” in the IRPA (Charkaoui (Re), [2004] 3 F.C.R. 32, 2003 FC 1419, at para. 120, per Noël J.). The judge is the sole avenue of review for the named person and the only person capable of providing the essential judicial component of the process.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-19", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 35–36", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "When reviewing the certificate, the judge sees all the material relied on by the government. But if the government claims confidentiality for certain material, the judge cannot share this material with the named person. The judge must make his or her decision without hearing any objections the named person might be able to make, were he or she granted access to the whole of the record. Part of the hearing may be held in camera, with only the judge and the government lawyers in the room. The named person is not there. His or her lawyer is not there. There is no one to speak for the person or to test the evidence put against him or her.\n\nThese circumstances may give rise to a perception that the designated judge under the IRPA may not be entirely independent and impartial as between the state and the person named in the certificate. Speaking at a conference in March 2002, Hugessen J. of the Federal Court expressed unease with the role assigned to designated judges under the IRPA : We do not like this process of having to sit alone hearing only one party, and looking at the materials produced by only one party . . . . If there is one thing that I learned in my practice at the Bar, and I have managed to retain it through all these years, it is that good cross-examination requires really careful preparation and a good knowledge of your case. And by definition, judges do not do that. . . . [W]e do not have any knowledge except what is given to us and when it is only given to us by one party we are not well suited to test the materials that are put before us. [Emphasis added.] (J. K. Hugessen, “Watching the Watchers: Democratic Oversight”, in D. Daubney et al., eds., Terrorism, Law and Democracy: How is Canada changing following September 11? (2002), 381, at p. 384)", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-20", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 37–38", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Three related concerns arise with respect to independence and impartiality. First is the concern that the IRPA may be perceived to deprive the judge of his or her independent judicial role and co-opt the judge as an agent of the executive branch of government. Second is the concern that the designated judge functions as an investigative officer rather than a judge. Third is the concern that the judge, whose role includes compensating for the fact that the named person may not have access to material and may not be present at the hearing, will become associated with this person’s case.\n\nThe first concern is linked to the degree of deference that the judge accords to the ministers’ conclusion that the facts supported the issuance of a certificate and the detention of the named person. Judges working under the process have eschewed an overly deferential approach, insisting instead on a searching examination of the reasonableness of the certificate on the material placed before them: Jaballah, Re (2004), 247 F.T.R. 68, 2004 FC 299; Charkaoui (Re), [2005] 2 F.C.R. 299, 2004 FCA 421, at para. 74. They are correct to do so, having regard to the language of the provision, the history of its adoption, and the role of the designated judge.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-21", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 39", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "First, an active role for the designated judge is justified by the language of the IRPA and the standards of review it establishes. The statute requires the designated judge to determine whether the certificate is “reasonable”, and emphasizes factual scrutiny by instructing the judge to do so “on the basis of the information and evidence available” (s. 80(1)). This language, as well as the accompanying factual, legal and administrative context, leads to the conclusion that the designated judge must review the certificate on a standard of reasonableness. Likewise, since the ministers’ decision to detain a permanent resident is based on “reasonable grounds to believe” (s. 82(1)), “[i]t is logical to assume that in subsequent reviews by a designated judge, the same standard will be used” (Charkaoui (Re), [2005] 3 F.C.R. 389, 2005 FC 248, at para. 30). The “reasonable grounds to believe” standard requires the judge to consider whether “there is an objective basis . . . which is based on compelling and credible information”: Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, at para. 114. “Reasonable grounds to believe” is the appropriate standard for judges to apply when reviewing a continuation of detention under the certificate provisions of the IRPA . The IRPA therefore does not ask the designated judge to be deferential, but, rather, asks him or her to engage in a searching review.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-22", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 40–42", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "This interpretation of the IRPA is confirmed by statements made in the course of the adoption of the scheme. While it was considering the IRPA , the Standing Committee on Citizenship and Immigration was informed that the role of the designated judge would be to avoid treatment that is unfair, arbitrary, or in violation of due process (Transcript of the Standing Committee on Citizenship and Immigration, Thursday, April 26, 2001 (online)).\n\nFinally, the fact that the designated judge may have access to more information than the ministers did in making their initial decision to issue a certificate and detain suggests that the judge possesses relative expertise on the matters at issue and is no mere rubber stamp: Charkaoui (Re), 2003 FC 1419, at para. 125.\n\nI conclude that a non-deferential role for the designated judge goes some distance toward alleviating the first concern, that the judge will be perceived to be in the camp of the government.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-23", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 43", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The second concern is that the judge may be seen to function more as an investigator than as an independent and impartial adjudicator. The law is clear that the principles of fundamental justice are breached if a judge is reduced to an executive, investigative function. At the same time, the mere fact that a judge is required to assist in an investigative activity does not deprive the judge of the requisite independence. In Re Bagri, the Court considered whether a provision of the Criminal Code , R.S.C. 1985, c. C-46 , that provides for a judge to assist the state in gathering evidence in the investigation of a terrorist offence violated s. 7 or s. 11( d ) of the Charter . Under s. 83.28, a judge can order a person to attend before the judge (or before another judge) to give information on a suspected past or future terrorism offence, and supervise the taking of the person’s statement. The hearing can take place in camera, and its very existence can be kept secret. Critics of s. 83.28 argued that it co-opts the presiding judge into performing an investigative rather than an adjudicative role. The majority held that the provision violates neither s. 7 of the Charter nor the unwritten principle of judicial independence. It stressed that s. 83.28 gives judges broad discretion to vary the terms of the order made under it and to ensure that constitutional and common law values are respected. It also noted that judges routinely participate in investigations in the criminal context and that their role in these situations is to “act as a check against state excess” (para. 86), and emphasized that in the context of investigative hearings the judge was not asked to question the individual or challenge the evidence, but merely to mediate and ensure the fairness of the proceeding.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-24", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 43–44", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "However, it warned that “once legislation invokes the aid of the judiciary, we must remain vigilant to ensure that the integrity of its role is not compromised or diluted” (para. 87).\n\nThe IRPA provisions before the Court, like s. 83.28 of the Criminal Code , preserve the essential elements of the judicial role. It is even clearer in this case than in Re Bagri that the process established by the legislation at issue is not purely investigative; the judge’s task of determining whether the certificate is “reasonable” seems on its face closer to adjudicative review of an executive act than to investigation. On the other hand, the provisions seem to require the judge to actively vet the evidence, an activity that the Court viewed as suspect in Re Bagri. Noël J., the designated judge for Mr. Charkaoui’s case, stated: Designated judges preside over hearings and hear the Minister’s witnesses. They examine witnesses themselves as the need arises. They examine the documents carefully to determine which information is related to security and which information is not. In order to do so, they examine, among other things, the sources of the information, the way in which it was obtained, the reliability of the sources and the method used, and whether it is possible to corroborate the information by other means. (2003 FC 1419, at para. 101) These comments suggest that while the designated judge may be more involved in vetting and skeptically scrutinizing the evidence than would be the case in a normal judicial hearing, the judge is nevertheless performing the adjudicative function of evaluation, rather than the executive function of investigation. However, care must be taken to avoid allowing the investigative aspect of the process to overwhelm its adjudicative aspect.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-25", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 45–47", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The third concern is that the judge’s role as sole protector of the named person’s interest may associate the judge, in fact or perception, with that interest. A judge who is obliged to take on a “defence” role in the absence of counsel may unconsciously become associated with that camp: R. v. Taubler (1987), 20 O.A.C. 64, at p. 71; R. v. Turlon (1989), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 191. This concern must be balanced against the opposite concern that the judge may appear to be part of the government scheme and hence in the government’s camp. The critical consideration, however, is that the IRPA permits — indeed requires — the judge to conduct the review in an independent and judicial fashion. Provided the judge does so, the scheme cannot be condemned on the ground that he or she is, in fact or perception, in the named person’s camp.\n\nI conclude that, on its face, the IRPA process is designed to preserve the independence and impartiality of the designated judge, as required by s. 7. Properly followed by judges committed to a searching review, it cannot be said to compromise the perceived independence and impartiality of the designated judge.\n\nI note that this conclusion conclusively rebuts the appellant Charkaoui’s contention that the IRPA breaches the unwritten constitutional principle of judicial independence affirmed in Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice), [2005] 2 S.C.R. 286, 2005 SCC 44. 5. Is the Decision Based on the Facts and the Law?", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-26", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 48–49", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "To comply with s. 7 of the Charter , the magistrate must make a decision based on the facts and the law. In the extradition context, the principles of fundamental justice have been held to require, “at a minimum, a meaningful judicial assessment of the case on the basis of the evidence and the law. A judge considers the respective rights of the litigants or parties and makes findings of fact on the basis of evidence and applies the law to those findings. Both facts and law must be considered for a true adjudication. Since Bonham’s Case [(1610), 8 Co. Rep. 113b, 77 E.R. 646], the essence of a judicial hearing has been the treatment of facts revealed by the evidence in consideration of the substantive rights of the parties as set down by law” (Ferras, at para. 25). The individual and societal interests at stake in the certificate of inadmissibility context suggest similar requirements.\n\nThe IRPA process at issue seeks to meet this requirement by placing material before the judge for evaluation. As a practical matter, most if not all of the material that the judge considers is produced by the government and can be vetted for reliability and sufficiency only by the judge. The normal standards used to ensure the reliability of evidence in court do not apply: s. 78(j). The named person may be shown little or none of the material relied on by the ministers and the judge, and may thus not be in a position to know or challenge the case against him or her. It follows that the judge’s decision, while based on the evidence before him or her, may not be based on all of the evidence available.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-27", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 50", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "There are two types of judicial systems, and they ensure that the full case is placed before the judge in two different ways. In inquisitorial systems, as in Continental Europe, the judge takes charge of the gathering of evidence in an independent and impartial way. By contrast, an adversarial system, which is the norm in Canada, relies on the parties — who are entitled to disclosure of the case to meet, and to full participation in open proceedings — to produce the relevant evidence. The designated judge under the IRPA does not possess the full and independent powers to gather evidence that exist in the inquisitorial process. At the same time, the named person is not given the disclosure and the right to participate in the proceedings that characterize the adversarial process. The result is a concern that the designated judge, despite his or her best efforts to get all the relevant evidence, may be obliged — perhaps unknowingly — to make the required decision based on only part of the relevant evidence. As Hugessen J. has noted, the adversarial system provides “the real warranty that the outcome of what we do is going to be fair and just” (p. 385); without it, the judge may feel “a little bit like a fig leaf” (Proceedings of the March 2002 Conference, at p. 386).", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-28", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 51–52", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Judges of the Federal Court have worked assiduously to overcome the difficulties inherent in the role the IRPA has assigned to them. To their credit, they have adopted a pseudo-inquisitorial role and sought to seriously test the protected documentation and information. But the role remains pseudo-inquisitorial. The judge is not afforded the power to independently investigate all relevant facts that true inquisitorial judges enjoy. At the same time, since the named person is not given a full picture of the case to meet, the judge cannot rely on the parties to present missing evidence. The result is that, at the end of the day, one cannot be sure that the judge has been exposed to the whole factual picture.\n\nSimilar concerns arise with respect to the requirement that the decision be based on the law. Without knowledge of the information put against him or her, the named person may not be in a position to raise legal objections relating to the evidence, or to develop legal arguments based on the evidence. The named person is, to be sure, permitted to make legal representations. But without disclosure and full participation throughout the process, he or she may not be in a position to put forward a full legal argument. 6. Is the “Case to Meet” Principle Satisfied?", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-29", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 53–54", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case. This right is well established in immigration law. The question is whether the procedures “provide an adequate opportunity for [an affected person] to state his case and know the case he has to meet” (Singh, at p. 213). Similarly, in Suresh, the Court held that a person facing deportation to torture under s. 53(1)(b) of the former Immigration Act, R.S.C. 1985, c. I-2, must “[n]ot only . . . be informed of the case to be met . . . [but] also be given an opportunity to challenge the information of the Minister where issues as to its validity arise” (para. 123).\n\nUnder the IRPA’s certificate scheme, the named person may be deprived of access to some or all of the information put against him or her, which would deny the person the ability to know the case to meet. Without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations. This problem is serious in itself. It also underlies the concerns, discussed above, about the independence and impartiality of the designated judge, and the ability of the judge to make a decision based on the facts and law.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-30", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 55–56", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Confidentiality is a constant preoccupation of the certificate scheme. The judge “shall ensure” the confidentiality of the information on which the certificate is based and of any other evidence if, in the opinion of the judge, disclosure would be injurious to national security or to the safety of any person: s. 78(b). At the request of either minister “at any time during the proceedings”, the judge “shall hear” information or evidence in the absence of the named person and his or her counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person: s. 78(e). The judge “shall provide” the named person with a summary of information that enables him or her to be reasonably informed of the circumstances giving rise to the certificate, but the summary cannot include anything that would, in the opinion of the judge, be injurious to national security or to the safety of any person: s. 78(h). Ultimately, the judge may have to consider information that is not included in the summary: s. 78(g). In the result, the judge may be required to decide the case, wholly or in part, on the basis of information that the named person and his or her counsel never see. The named person may know nothing of the case to meet, and although technically afforded an opportunity to be heard, may be left in a position of having no idea as to what needs to be said.\n\nThe same concerns arise with respect to the detention review process under ss. 83 and 84 of the IRPA . Section 78 applies to detention reviews under s. 83, and it has been found to apply to detention reviews under s. 84(2): Almrei v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 142, 2005 FCA 54, at paras. 71-72.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-31", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 57", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The right to know the case to be met is not absolute. Canadian statutes sometimes provide for ex parte or in camera hearings, in which judges must decide important issues after hearing from only one side. In Rodgers, the majority of this Court declined to recognize notice and participation as invariable constitutional norms, emphasizing a context-sensitive approach to procedural fairness. And in Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31, the Court, per Rothstein J., held that while “[h]earing from both sides of an issue is a principle to be departed from only in exceptional circumstances”, in the ordinary case, a judge would be “well equipped . . . to determine whether a record is subject to [solicitor-client] privilege” without the assistance of counsel on both sides (para. 21).", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-32", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 58", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "More particularly, the Court has repeatedly recognized that national security considerations can limit the extent of disclosure of information to the affected individual. In Chiarelli, this Court found that the Security Intelligence Review Committee could, in investigating certificates under the former Immigration Act, 1976, S.C. 1976-77, c. 52 (later R.S.C. 1985, c. I-2), refuse to disclose details of investigation techniques and police sources. The context for elucidating the principles of fundamental justice in that case included the state’s “interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources” (p. 744). In Suresh, this Court held that a refugee facing the possibility of deportation to torture was entitled to disclosure of all the information on which the Minister was basing his or her decision, “[s]ubject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents” (para. 122). And, in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75, the Court upheld the section of the Privacy Act , R.S.C. 1985, c. P-21 , that mandates in camera and ex parte proceedings where the government claims an exemption from disclosure on grounds of national security or maintenance of foreign confidences. The Court made clear that these societal concerns formed part of the relevant context for determining the scope of the applicable principles of fundamental justice (paras. 38-44).", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-33", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 59–60", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "In some contexts, substitutes for full disclosure may permit compliance with s. 7 of the Charter . For example, in Rodgers, the majority of the Court upheld the constitutionality of ex parte hearings for applications under s. 487.055 of the Criminal Code to take DNA samples from listed multiple offenders, on the ground that the protections Parliament had put in place were adequate (paras. 51-52). Similarly, in Chiarelli, the Court upheld the lack of disclosure on the basis that the information disclosed by way of summary and the opportunity to call witnesses and cross-examine RCMP witnesses who testified in camera satisfied the requirements of fundamental justice. And in Ruby, the Court held that the substitute measures provided by Parliament satisfied the constitutional requirements of procedural fairness (para. 42). Arbour J. stated: “In such circumstances, fairness is met through other procedural safeguards such as subsequent disclosure, judicial review and rights of appeal” (para. 40).\n\nWhere limited disclosure or ex parte hearings have been found to satisfy the principles of fundamental justice, the intrusion on liberty and security has typically been less serious than that effected by the IRPA : Rodgers, at para. 53. It is one thing to deprive a person of full information where fingerprinting is at stake, and quite another to deny him or her information where the consequences are removal from the country or indefinite detention. Moreover, even in the less intrusive situations, courts have insisted that disclosure be as specific and complete as possible.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-34", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 61–62", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the context of national security, non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy s. 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case. Yet the imperative of the protection of society may preclude this. Information may be obtained from other countries or from informers on condition that it not be disclosed. Or it may simply be so critical that it cannot be disclosed without risking public security. This is a reality of our modern world. If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. Neither is the case here.\n\nThe only protection the IRPA accords the named person is a review by a designated judge to determine whether the certificate is reasonable. The ministers argue that this is adequate in that it maintains a “delicate balance” between the right to a fair hearing and the need to protect confidential security intelligence information. The appellants, on the other hand, argue that the judge’s efforts, however conscientious, cannot provide an effective substitute for informed participation.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-35", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 63", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "I agree with the appellants. The issue at the s. 7 stage, as discussed above, is not whether the government has struck the right balance between the need for security and individual liberties; that is the issue at the stage of s. 1 justification of an established limitation on a Charter right. The question at the s. 7 stage is whether the basic requirements of procedural justice have been met, either in the usual way or in an alternative fashion appropriate to the context, having regard to the government’s objective and the interests of the person affected. The fairness of the IRPA procedure rests entirely on the shoulders of the designated judge. Those shoulders cannot by themselves bear the heavy burden of assuring, in fact and appearance, that the decision on the reasonableness of the certificate is impartial, is based on a full view of the facts and law, and reflects the named person’s knowledge of the case to meet. The judge, working under the constraints imposed by the IRPA , simply cannot fill the vacuum left by the removal of the traditional guarantees of a fair hearing. The judge sees only what the ministers put before him or her. The judge, knowing nothing else about the case, is not in a position to identify errors, find omissions or assess the credibility and truthfulness of the information in the way the named person would be. Although the judge may ask questions of the named person when the hearing is reopened, the judge is prevented from asking questions that might disclose the protected information. Likewise, since the named person does not know what has been put against him or her, he or she does not know what the designated judge needs to hear.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-36", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 63–64", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "If the judge cannot provide the named person with a summary of the information that is sufficient to enable the person to know the case to meet, then the judge cannot be satisfied that the information before him or her is sufficient or reliable. Despite the judge’s best efforts to question the government’s witnesses and scrutinize the documentary evidence, he or she is placed in the situation of asking questions and ultimately deciding the issues on the basis of incomplete and potentially unreliable information.\n\nThe judge is not helpless; he or she can note contradictions between documents, insist that there be at least some evidence on the critical points, and make limited inferences on the value and credibility of the information from its source. Nevertheless, the judge’s activity on behalf of the named person is confined to what is presented by the ministers. The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know? 7. Conclusion on Section 7", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-37", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 65", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the IRPA, an attempt has been made to meet the requirements of fundamental justice essentially through one mechanism — the designated judge charged with reviewing the certificate of inadmissibility and the detention. To Parliament’s credit, a sincere attempt has been made to give the designated judge the powers necessary to discharge the role in an independent manner, based on the facts and the law. Yet, the secrecy required by the scheme denies the named person the opportunity to know the case put against him or her, and hence to challenge the government’s case. This, in turn, undermines the judge’s ability to come to a decision based on all the relevant facts and law. Despite the best efforts of judges of the Federal Court to breathe judicial life into the IRPA procedure, it fails to assure the fair hearing that s. 7 of the Charter requires before the state deprives a person of life, liberty or security of the person. I therefore conclude that the IRPA ’s procedure for determining whether a certificate is reasonable does not conform to the principles of fundamental justice as embodied in s. 7 of the Charter . The same conclusion necessarily applies to the detention review procedures under ss. 83 and 84 of the IRPA . 8. Is the Limit Justified Under Section 1 of the Charter ?", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-38", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 66–67", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Charter does not guarantee rights absolutely. The state is permitted to limit rights — including the s. 7 guarantee of life, liberty and security — if it can establish that the limits are demonstrably justifiable in a free and democratic society. This said, violations of s. 7 are not easily saved by s. 1. In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, Lamer J. (as he then was) stated, for the majority: Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like. [p. 518] The rights protected by s. 7 — life, liberty, and security of the person — are basic to our conception of a free and democratic society, and hence are not easily overridden by competing social interests. It follows that violations of the principles of fundamental justice, specifically the right to a fair hearing, are difficult to justify under s. 1: G. (J.). Nevertheless, the task may not be impossible, particularly in extraordinary circumstances where concerns are grave and the challenges complex.\n\nThe test to be applied in determining whether a violation can be justified under s. 1, known as the Oakes test (R. v. Oakes, [1986] 1 S.C.R. 103), requires a pressing and substantial objective and proportional means. A finding of proportionality requires: (a) means rationally connected to the objective; (b) minimal impairment of rights; and (c) proportionality between the effects of the infringement and the importance of the objective.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-39", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 68", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The protection of Canada’s national security and related intelligence sources undoubtedly constitutes a pressing and substantial objective. Moreover, the IRPA ’s provisions regarding the non‑disclosure of evidence at certificate hearings are rationally connected to this objective. The facts on this point are undisputed. Canada is a net importer of security information. This information is essential to the security and defence of Canada, and disclosure would adversely affect its flow and quality: see Ruby. This leaves the question whether the means Parliament has chosen, i.e. a certificate procedure leading to detention and deportation of non-citizens on the ground that they pose a threat to Canada’s security, minimally impairs the rights of non‑citizens.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-40", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 69–70", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The realities that confront modern governments faced with the challenge of terrorism are stark. In the interest of security, it may be necessary to detain persons deemed to pose a threat. At the same time, security concerns may preclude disclosure of the evidence on which the detention is based. But these tensions are not new. As we shall see, Canada has already devised processes that go further in preserving s. 7 rights while protecting sensitive information; until recently, one of these solutions was applicable in the security certificate context. Nor are these tensions unique to Canada: in the specific context of anti-terrorism legislation, the United Kingdom uses special counsel to provide a measure of protection to the detained person’s interests, while preserving the confidentiality of information that must be kept secret. These alternatives suggest that the IRPA regime, which places on the judge the entire burden of protecting the person’s interest, does not minimally impair the rights of non-citizens, and hence cannot be saved under s. 1 of the Charter . (a) Less Intrusive Alternatives\n\nThis is not the first time Canada has had to reconcile the demands of national security with the procedural rights guaranteed by the Charter . In a number of legal contexts, Canadian government institutions have found ways to protect sensitive information while treating individuals fairly. In some situations, the solution has involved the use of special counsel, in a manner closely approximating an adversarial process.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-41", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 71", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Security Intelligence Review Committee (“SIRC”) is an independent review body that monitors the activities of the Canadian Security Intelligence Service (“CSIS”). Established in 1984 under the Canadian Security Intelligence Service Act, S.C. 1984, c. 21 (now R.S.C. 1985, c. C-23 ), SIRC is composed of three to five members of the Privy Council who are not currently serving in Parliament. Under the former Immigration Act, SIRC had the power to vet findings of inadmissibility based on alleged threats to national security; a ministerial certificate could not be issued without a SIRC investigation. If the Minister of Employment and Immigration and the Solicitor General were of the opinion that a non-citizen was inadmissible due to involvement in organized crime, espionage, subversion, acts of violence, etc., they were first obliged to make a report to SIRC: Immigration Act, s. 39(2). SIRC would then investigate the grounds for the report, providing the affected person with “a statement summarizing such information available to it as will enable the person to be as fully informed as possible of the circumstances giving rise to the report”: s. 39(6). After completing its investigation, SIRC would send a report to the Governor in Council containing its recommendation as to whether a security certificate should be issued: s. 39(9). A copy of the same report would be provided to the non-citizen: s. 39(10). If the Governor in Council was satisfied that the non-citizen was inadmissible on appropriate grounds, he or she could then direct the Minister of Employment and Immigration to issue a security certificate: s. 40(1).", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-42", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 72", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Empowered to develop its own investigative procedures, SIRC established a formal adversarial process, with “a court-like hearing room” and “procedures that mirrored judicial proceedings as much as possible”. The process also included an independent panel of lawyers with security clearances to act as counsel to SIRC (M. Rankin, “The Security Intelligence Review Committee: Reconciling National Security with Procedural Fairness” (1990), 3 C.J.A.L.P. 173, at p. 179).", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-43", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 73", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "A SIRC member presiding at a hearing had the discretion to balance national security against procedural fairness in determining how much information could be disclosed to the affected person. The non-citizen and his or her counsel would normally be present in the hearing room, except when sensitive national security evidence was tendered. (The presiding SIRC member would decide whether to exclude the non-citizen during certain testimony.) At such a juncture, independent, security-cleared SIRC counsel would act on behalf of the non-citizen. The SIRC counsel were instructed to cross-examine witnesses for CSIS “with as much vigour as one would expect from the complainant’s counsel” (Rankin, at p. 184; SIRC Annual Report 1988-1989 (1989) (“SIRC Annual Report”), at p. 64). At the end of this ex parte portion of the hearing, the excluded person would be brought back into the room and provided with a summary, which would include “the gist of the evidence, without disclosing the national security information” (SIRC Annual Report, at p. 64). The SIRC counsel would negotiate the contents of the summary with CSIS, under the supervision of the presiding SIRC member (ibid.). The affected person and his or her counsel would then be allowed to ask their own questions, and to cross-examine on the basis of the summary (Rankin, at p. 184).", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-44", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 74–75", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the words of Professor Rankin, SIRC’s procedures represented “an attempt to preserve the best features of the adversarial process with its insistence on vigorous cross-examination, but not to run afoul of the requirements of national security” (p. 185). These procedures illustrate how special counsel can provide not only an effective substitute for informed participation, but can also help bolster actual informed participation by the affected person. Since the special counsel had a role in determining how much information would be included in the summary, disclosure was presumably more complete than would otherwise have been the case. Sensitive national security information was still protected, but the executive was required to justify the breadth of this protection.\n\nIn 1988 Parliament added s. 40.1 to the Immigration Act to empower the Minister and the Solicitor General to issue security certificates in respect of foreign nationals. Section 40.1 effectively bypassed the SIRC investigation process where foreign nationals were concerned, instead referring the certificate to a designated judge of the Federal Court for subsequent review. Security certificates in respect of permanent residents remained subject to SIRC scrutiny until 2002, when Parliament repealed the Immigration Act and replaced it with the IRPA .", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-45", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 76", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Certain elements of SIRC process may be inappropriate to the context of terrorism. Where there is a risk of catastrophic acts of violence, it would be foolhardy to require a lengthy review process before a certificate could be issued. But it was not suggested before this Court that SIRC’s special counsel system had not functioned well in connection with the review of certificates under the Immigration Act, nor was any explanation given for why, under the new system for vetting certificates and reviewing detentions, a special counsel process had not been retained.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-46", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 77", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The SIRC process is not the only example of the Canadian legal system striking a better balance between the protection of sensitive information and the procedural rights of individuals. A current example is found in the Canada Evidence Act , R.S.C. 1985, c. C-5 (“CEA ”), which permits the government to object to the disclosure of information on grounds of public interest, in proceedings to which the Act applies: ss. 37 to 39. Under the recent amendments to the CEA set out in the Anti-terrorism Act , S.C. 2001, c. 41 , a participant in a proceeding who is required to disclose or expects to disclose potentially injurious or sensitive information, or who believes that such information might be disclosed, must notify the Attorney General about the potential disclosure, and the Attorney General may then apply to the Federal Court for an order prohibiting the disclosure of the information: ss. 38.01, 38.02, 38.04. The judge enjoys considerable discretion in deciding whether the information should be disclosed. If the judge concludes that disclosure of the information would be injurious to international relations, national defence or national security, but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may order the disclosure of all or part of the information, on such conditions as he or she sees fit. No similar residual discretion exists under the IRPA , which requires judges not to disclose information the disclosure of which would be injurious to national security or to the safety of any person. Moreover, the CEA makes no provision for the use of information that has not been disclosed.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-47", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 77–78", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "While the CEA does not address the same problems as the IRPA , and hence is of limited assistance here, it illustrates Parliament’s concern under other legislation for striking a sensitive balance between the need for protection of confidential information and the rights of the individual.\n\nCrown and defence counsel in the recent Air India trial (R. v. Malik, [2005] B.C.J. No. 521 (QL), 2005 BCSC 350) were faced with the task of managing security and intelligence information and attempting to protect procedural fairness. The Crown was in possession of the fruits of a 17-year-long investigation into the terrorist bombing of a passenger aircraft and a related explosion in Narita, Japan. It withheld material on the basis of relevance, national security privilege and litigation privilege. Crown and defence counsel came to an agreement under which defence counsel obtained consents from their clients to conduct a preliminary review of the withheld material, on written undertakings not to disclose the material to anyone, including the client. Disclosure in a specific trial, to a select group of counsel on undertakings, may not provide a working model for general deportation legislation that must deal with a wide variety of counsel in a host of cases. Nevertheless, the procedures adopted in the Air India trial suggest that a search should be made for a less intrusive solution than the one found in the IRPA .", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-48", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 79–80", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Arar Inquiry provides another example of the use of special counsel in Canada. The Commission had to examine confidential information related to the investigation of terrorism plots while preserving Mr. Arar’s and the public’s interest in disclosure. The Commission was governed by the CEA . To help assess claims for confidentiality, the Commissioner was assisted by independent security-cleared legal counsel with a background in security and intelligence, whose role was to act as amicus curiae on confidentiality applications. The scheme’s aim was to ensure that only information that was rightly subject to national security confidentiality was kept from public view. There is no indication that these procedures increased the risk of disclosure of protected information.\n\nFinally, I note the special advocate system employed by the Special Immigration Appeals Commission (“SIAC”) in the United Kingdom. SIAC and the special advocate system were created in response to Chahal v. United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1831, in which the European Court of Human Rights had held that the procedure then in place was inadequate. The court in Chahal commented favourably on the idea of security‑cleared counsel instructed by the court, identifying it as being Canadian in origin (perhaps referring to the procedure developed by SIRC).", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-49", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 81", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The U.K.’s special advocate system resembles the Canadian SIRC model. Section 6(1) of the Special Immigration Appeals Commission Act 1997 (U.K.), 1997, c. 68, states that the special advocate is appointed to “represent the interests of an appellant” in any proceedings before SIAC from which the appellant and his or her legal representatives are excluded. Section 6(4), however, specifies that the special advocate “shall not be responsible to the person whose interests he is appointed to represent”. Rule 35 of the Special Immigration Appeals Commission (Procedure) Rules 2003, S.I. 2003/1034, sets out the special advocate’s three main functions: (1) to make submissions to the Commission at any hearings from which the appellant and the appellant’s representatives are excluded; (2) to cross-examine witnesses at any such hearings; and (3) to make written submissions to the Commission. After seeing the protected information, the special advocate may not communicate with the appellant or the appellant’s representative without authorization from the Commission: rule 36. If the special advocate requests such authorization, the Commission gives the Secretary of State an opportunity to object to the proposed communication before deciding whether to authorize it: rule 38.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-50", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 82–83", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The use of special advocates has received widespread support in Canadian academic commentary. Professor Roach, for example, criticizes the Court of Appeal’s conclusion in Charkaoui (Re), 2004 FCA 421, that such a measure is not constitutionally required: In my view, this approach was in error because in camera and ex parte hearings offend basic notions of a fair hearing and special advocates constitute one example of an approach that is a more proportionate response to reconciling the need to keep some information secret and the need to ensure as much fairness and adversarial challenge as possible. [Emphasis added.] (K. Roach, “Ten Ways to Improve Canadian Anti-Terrorism Law” (2006), 51 Crim. L.Q. 102, at p. 120)\n\nThis said, the U.K.’s special advocate system has also been criticized for not going far enough. In April 2005, the House of Commons Constitutional Affairs Committee published a report on the operation of SIAC and the use of special advocates (The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates). The Committee listed three important disadvantages faced by special advocates: (1) once they have seen the confidential material, they cannot, subject to narrow exceptions, take instructions from the appellant or the appellant’s counsel; (2) they lack the resources of an ordinary legal team, for the purpose of conducting in secret a full defence; and (3) they have no power to call witnesses (para. 52).", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-51", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 84–86", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Despite these difficulties, SIAC itself has commented favourably on the assistance provided by special advocates, stating that as a result of the “rigorous cross-examination” of the government’s evidence by the special advocate, it was satisfied that the government’s assertions were unsupported by the evidence (M. v. Secretary of State for the Home Department, [2004] UKSIAC 17/2002 (BAILII), March 8, 2004, at para. 10). The England and Wales Court of Appeal upheld SIAC’s decision: [2004] 2 All E.R. 863, [2004] EWCA Civ 324. (b) The IRPA Scheme Does Not Minimally Impair the Named Person’s Rights\n\nParliament is not required to use the perfect, or least restrictive, alternative to achieve its objective: R. v. Chaulk, [1990] 3 S.C.R. 1303. However, bearing in mind the deference that is owed to Parliament in its legislative choices, the alternatives discussed demonstrate that the IRPA does not minimally impair the named person’s rights.\n\nUnder the IRPA, the government effectively decides what can be disclosed to the named person. Not only is the named person not shown the information and not permitted to participate in proceedings involving it, but no one but the judge may look at the information with a view to protecting the named person’s interests. Why the drafters of the legislation did not provide for special counsel to objectively review the material with a view to protecting the named person’s interest, as was formerly done for the review of security certificates by SIRC and is presently done in the United Kingdom, has not been explained. The special counsel system may not be perfect from the named person’s perspective, given that special counsel cannot reveal confidential material. But, without compromising security, it better protects the named person’s s. 7 interests.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-52", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 87–88", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "I conclude that the IRPA ’s procedures for determining whether a certificate is reasonable and for detention review cannot be justified as minimal impairments of the individual’s right to a judicial determination on the facts and the law and right to know and meet the case. Mechanisms developed in Canada and abroad illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA . Precisely what more should be done is a matter for Parliament to decide. But it is clear that more must be done to meet the requirements of a free and democratic society. B. Does the Detention of Permanent Residents or Foreign Nationals Under the IRPA Infringe Sections 7, 9, 10(c) or 12 of the Charter , and if so, Are the Infringements Justified Under Section 1 of the Charter ? 1. Time Constraints on Review for Foreign Nationals: Breach of Section 9 or Section 10(c)?\n\nSection 9 of the Charter guarantees freedom from arbitrary detention. This guarantee expresses one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law. The appellant Mr. Almrei argues that detention under the IRPA is arbitrary with respect to foreign nationals, first because it permits their detention without warrant and without regard to their personal circumstances, and second because it prevents review until 120 days after the certificate is confirmed. In both respects, foreign nationals are treated differently than permanent residents.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-53", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 89", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "I would reject Mr. Almrei’s argument that automatic detention of foreign nationals is arbitrary because it is effected without regard to the personal circumstances of the detainee. Detention is not arbitrary where there are “standards that are rationally related to the purpose of the power of detention”: P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 46-5. The triggering event for the detention of a foreign national is the signing of a certificate stating that the foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. The security ground is based on the danger posed by the named person, and therefore provides a rational foundation for the detention. R. v. Swain, [1991] 1 S.C.R. 933, in which this Court struck down a provision of the Criminal Code requiring that an accused acquitted of an offence on the basis of an insanity defence be detained automatically without a hearing, is distinguishable. The Court held that it was arbitrary to require the detention of persons acquitted by reason of mental disorder without the application of any standard whatsoever, because “[n]ot all of these individuals will be dangerous”: at p. 1013, per Lamer C.J. But in the national security context, the signature of a certificate under s. 77 of the IRPA on the ground of security is necessarily related to the dangerousness of the individual. While not all the other grounds for the issuance of a certificate under s. 77(1) are conclusive of the danger posed by the named person, danger is not the only constitutional basis upon which an individual can be detained, and arbitrariness of detention under the other grounds was not argued.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-54", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 90", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "This leaves Mr. Almrei’s argument that the IRPA imposes arbitrary detention because it prevents review of the detention of foreign nationals until 120 days after the certificate is confirmed. Whether through habeas corpus or statutory mechanisms, foreign nationals, like others, have a right to prompt review to ensure that their detention complies with the law. This principle is affirmed in s. 10( c ) of the Charter . It is also recognized internationally: see Rasul v. Bush, 542 U.S. 466 (2004); Zadvydas v. Davis, 533 U.S. 678 (2001); art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (“European Convention on Human Rights”); Slivenko v. Latvia [GC], No. 48321/99, ECHR 2003-X, p. 229. While the government accepts this principle, it argues that the 120-day period in s. 84(2) is sufficiently prompt, relying, as did the courts below, on the fact that foreign nationals can apply for release and depart from Canada at any time.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-55", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 91–92", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The lack of review for foreign nationals until 120 days after the reasonableness of the certificate has been judicially determined violates the guarantee against arbitrary detention in s. 9 of the Charter , a guarantee which encompasses the right to prompt review of detention under s. 10( c ) of the Charter . Permanent residents named in certificates are entitled to an automatic review within 48 hours. The same time frame for review of detention applies to both permanent residents and foreign nationals under s. 57 of the IRPA . And under the Criminal Code , a person who is arrested with or without a warrant is to be brought before a judge within 24 hours, or as soon as possible: s. 503(1). These provisions indicate the seriousness with which the deprivation of liberty is viewed, and offer guidance as to acceptable delays before this deprivation is reviewed.\n\nThe government submits that the detention provisions, and more specifically the absence of review for foreign nationals until 120 days after the certificate has been determined to be reasonable, reflect its objective of creating a timely removal process for individuals thought to constitute a danger to national security, and asserts that when the provisions were drafted, it was thought that the removal process would be so fast that there would be no need for review. This is more an admission of the excessiveness of the 120-day period than a justification.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-56", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 93–95", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is clear that there may be a need for some flexibility regarding the period for which a suspected terrorist may be detained. Confronted with a terrorist threat, state officials may need to act immediately, in the absence of a fully documented case. It may take some time to verify and document the threat. Where state officials act expeditiously, the failure to meet an arbitrary target of a fixed number of hours should not mean the automatic release of the person, who may well be dangerous. However, this cannot justify the complete denial of a timely detention review. Permanent residents who pose a danger to national security are also meant to be removed expeditiously. If this objective can be pursued while providing permanent residents with a mandatory detention review within 48 hours, then how can a denial of review for foreign nationals for 120 days after the certificate is confirmed be considered a minimal impairment?\n\nI conclude that the lack of timely review of the detention of foreign nationals violates s. 9 and s. 10(c) and cannot be saved by s. 1. 2. Do Extended Periods of Detention Under the Scheme Violate Section 7 or the Section 12 Guarantee Against Cruel and Unusual Treatment?\n\nThe question at this point is whether the extended detention that may occur under the IRPA violates the guarantee against cruel and unusual treatment under s. 12 of the Charter . The threshold for breach of s. 12 is high. As stated by Lamer J. in Smith, treatment or punishment is cruel and unusual if it is “so excessive as to outrage [our] standards of decency”: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1067; also R. v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84, at para. 4.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-57", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 96–97", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual. (The same may be true of onerous conditions of release that seriously restrict a person’s liberty without affording an opportunity to challenge the restrictions.) Conversely, a system that permits the detainee to challenge the detention and obtain a release if one is justified may lead to the conclusion that the detention is not cruel and unusual: see Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.), per Rothstein J. (as he then was).\n\nMr. Almrei’s first submission is that “the combination of the legislative scheme and the conditions of detention . . . [transforms] the Appellant’s detention into one that is cruel and unusual”. I would reject this submission. This Court has not, in its past decisions, recognized s. 12 as a mechanism to challenge the overall fairness of a particular legislative regime.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-58", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 98–99", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "More narrowly, however, it has been recognized that indefinite detention in circumstances where the detainee has no hope of release or recourse to a legal process to procure his or her release may cause psychological stress and therefore constitute cruel and unusual treatment: Eur. Court H.R., Soering case, judgment of 7 July 1989, Series A, No. 161, at para. 111; compare Lyons, at pp. 339-41. However, for the reasons that follow, I conclude that the IRPA does not impose cruel and unusual treatment within the meaning of s. 12 of the Charter because, although detentions may be lengthy, the IRPA , properly interpreted, provides a process for reviewing detention and obtaining release and for reviewing and amending conditions of release, where appropriate.\n\nOn its face, the IRPA permits detention pending deportation on security grounds. In reality, however, a release from detention may be difficult to obtain. The Federal Court suggested that Mr. Almrei “holds the key to his release”: Almrei v. Canada (Minister of Citizenship and Immigration), [2004] 4 F.C.R. 327, 2004 FC 420, at para. 138. But voluntary departure may be impossible. A person named in a certificate of inadmissibility may have nowhere to go. Other countries may assume such a person to be a terrorist and are likely to refuse entry, or the person may fear torture on his or her return. Deportation may fail for the same reasons, despite the observation that “[i]n our jurisdiction, at this moment, deportation to torture remains a possibility” in exceptional circumstances: Almrei, 2005 FCA 54, at para. 127. The only realistic option may be judicial release.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-59", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 100", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the case of a permanent resident, detention is continued if the judge is satisfied that the person “continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal”: s. 83(3). The ministers bear the initial burden of establishing that these criteria are met: Charkaoui (Re), [2004] 1 F.C.R. 528, 2003 FC 882, at para. 36. In the case of a foreign national, release may be granted if the judge is “satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person”: s. 84(2). Unlike s. 83(3), s. 84(2) places the onus on the detainee: see Ahani v. Canada (Minister of Citizenship and Immigration) (2000), 24 Admin. L.R. (3d) 171 (F.C.A.).", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-60", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 101", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Courts thus far have understood these provisions to set a high standard for release. In interpreting the predecessor to s. 84(2) under the Immigration Act, the Federal Court of Appeal held that judicial release “cannot be an automatic or easy thing to achieve”, and that it “is not to be routinely obtained”: Ahani, at para. 13. At the same time, courts have read the provision as allowing the judge to inquire whether terms and conditions could make the release safe. This is an invitation that Federal Court judges have rightly accepted: Harkat v. Canada (Minister of Citizenship and Immigration) [2007] 1 F.C.R. 321, 2006 FC 628, at para. 82; Almrei v. Canada (Minister of Citizenship and Immigration) (2005), 270 F.T.R. 1, 2005 FC 1645, at paras. 419-26. Likewise, when reviewing the detention of a permanent resident under s. 83(3), judges have examined the context that would surround release in order to determine whether the person would pose a security risk: Charkaoui (Re), 2005 FC 248, at paras. 71-73.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-61", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 102", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The cases at bar illustrate the difficulty that may be encountered in seeking release from a detention imposed under the IRPA . At the time of writing, Mr. Almrei, a foreign national, has been detained for over five years. He cannot be deported until the Minister issues an opinion that he constitutes a danger to the public. But two “danger opinions” have already been quashed by the Federal Court, the last one in March 2005. The Minister has yet to issue a new one. In dismissing Mr. Almrei’s application for judicial release, Layden-Stevenson J. held that Mr. Almrei had established that his removal was not imminent, was not a “done deal” and would not occur within a reasonable time (para. 272). However, she held that she was compelled to keep him in detention because she found that his release would pose a danger to national security under s. 84(2): Almrei, 2005 FC 1645. Mr. Almrei argues that as far as he is concerned, his detention is indefinite.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-62", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 103–104", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Harkat has been released from detention, but remains under house arrest and continuous surveillance by the Canada Border Services Agency (“CBSA”) and the RCMP by virtue of an order by Dawson J. He must at all times wear an electronic monitoring device and obtain the CBSA’s permission before leaving his house. He must at all times be under the supervision of either his wife or his mother-in-law. Access to his residence is restricted to individuals who have posted sureties and to Mr. Harkat’s legal counsel, as well as to emergency, fire, police and health care professionals. The CBSA is permitted to intercept all telephone and oral communications between Mr. Harkat and any third party. Mr. Harkat is forbidden to use any cellular phone or any computer with Internet connectivity. Breach of any of the numerous conditions in Dawson J.’s order would lead to automatic rearrest; however, these conditions are subject to ongoing review and amendment. The government is attempting to deport him to Algeria; whether this is possible may depend on the outcome of legal processes that are still pending.\n\nMr. Charkaoui has been released from detention under conditions that are somewhat less onerous: Charkaoui (Re), 2005 FC 248, at para. 86. These conditions have a serious impact on his liberty, and he remains in jeopardy of being rearrested for a breach of his conditions. But the conditions are subject to ongoing review and have been amended several times subsequent to his release. More legal avenues remain to be explored. Whether the government will seek to deport Mr. Charkaoui or detain him anew may depend on the outcome of his application for protection and the determination of the reasonableness of his certificate.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-63", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 105–106", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is thus clear that while the IRPA in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions. The next question is whether this violates s. 7 or s. 12 based on the applicable legal principles.\n\nThis Court has previously considered the possibility of indefinite detention in the criminal context. In Lyons, a majority of the Court held that “dangerous offender” legislation allowing for indefinite detention did not constitute cruel and unusual treatment or punishment within the meaning of s. 12 of the Charter because the statutory scheme includes a parole process that “ensures that incarceration is imposed for only as long as the circumstances of the individual case require” (p. 341, per La Forest J.). It is true that a judge can impose the dangerous offender designation only on a person who has been convicted of a serious personal injury offence; this Court indicated that a sentence of indeterminate detention, applied with respect to a future crime or a crime that had already been punished, would violate s. 7 of the Charter (pp. 327-28, per La Forest J.). But the use in criminal law of indeterminate detention as a tool of sentencing — serving both a punitive and a preventive function — does not establish the constitutionality of preventive detention measures in the immigration context.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-64", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 107", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The principles underlying Lyons must be adapted in the case at bar to the immigration context, which requires a period of time for review of the named person’s right to remain in Canada. Drawing on them, I conclude that the s. 7 principles of fundamental justice and the s. 12 guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case. Such persons must have meaningful opportunities to challenge their continued detention or the conditions of their release.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-65", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 108", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The type of process required has been explored in cases involving analogous situations. In Sahin, Rothstein J. had occasion to examine a situation of ongoing detention (for reasons unrelated to national security) under the Immigration Act. He concluded that “what amounts to an indefinite detention for a lengthy period of time may, in an appropriate case, constitute a deprivation of liberty that is not in accordance with the principles of fundamental justice” (p. 229) and held that ongoing detention under the Immigration Act could be constitutional if it resulted from the weighing of a number of factors (at pp. 231-32): The following list, which, of course, is not exhaustive of all considerations, seems to me to at least address the more obvious [considerations]. Needless to say, the considerations relevant to a specific case, and the weight to be placed upon them, will depend upon the circumstances of the case. (1) Reasons for the detention, i.e. is the applicant considered a danger to the public or is there a concern that he would not appear for removal. I would think that there is a stronger case for continuing a long detention when an individual is considered a danger to the public. (2) Length of time in detention and length of time detention will likely continue. If an individual has been held in detention for some time as in the case at bar, and a further lengthy detention is anticipated, or if future detention time cannot be ascertained, I would think that these facts would tend to favour release. (3) Has the applicant or the respondent caused any delay or has either not been as diligent as reasonably possible. Unexplained delay and even unexplained lack of diligence should count against the offending party.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-66", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 108–109", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "(4) The availability, effectiveness and appropriateness of alternatives to detention such as outright release, bail bond, periodic reporting, confinement to a particular location or geographic area, the requirement to report changes of address or telephone numbers, detention in a form that could be less restrictive to the individual, etc. A consideration that I think deserves significant weight is the amount of time that is anticipated until a final decision, determining, one way or the other, whether the applicant may remain in Canada or must leave.\n\nFactors regarding release are considered in another part of the IRPA and the accompanying Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRP Regulations”). When a non-citizen not named in a certificate is detained because he or she is inadmissible and also is a danger to the public or is unlikely to appear for examination, the non-citizen is entitled to detention reviews before the Immigration and Refugee Board: IRPA , ss. 55 to 57 . In determining whether the non-citizen should be held or released, the Board must take into account “prescribed factors”: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention (s. 58 IRPA and r. 248 IRP Regulations).", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-67", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 110–111", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "I conclude that extended periods of detention under the certificate provisions of the IRPA do not violate ss. 7 and 12 of the Charter if accompanied by a process that provides regular opportunities for review of detention, taking into account all relevant factors, including the following: (a) Reasons for Detention\n\nThe criteria for signing a certificate are “security, violating human or international rights, serious criminality or organized criminality” (s. 77). Detention pursuant to a certificate is justified on the basis of a continuing threat to national security or to the safety of any person. While the criteria for release under s. 83 of the IRPA also include the likelihood that a person will appear at a proceeding or for removal, a threat to national security or to the safety of a person is a more important factor for the purpose of justifying continued detention. The more serious the threat, the greater will be the justification for detention. (b) Length of Detention", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-68", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 112–113", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The length of the detention to date is an important factor, both from the perspective of the individual and from the perspective of national security. The longer the period, the less likely that an individual will remain a threat to security: “The imminence of danger may decline with the passage of time”: Charkaoui (Re), 2005 FC 248, at para. 74. Noël J. concluded that Mr. Charkaoui could be released safely from detention because his long period of detention had cut him off from whatever associations with extremist groups he may have had. Likewise, in Mr. Harkat’s case, Dawson J. based her decision to release Mr. Harkat in part on the fact that the long period of detention meant that “his ability to communicate with persons in the Islamic extremist network has been disrupted”: Harkat, 2006 FC 628, at para. 86.\n\nA longer period of detention would also signify that the government would have had more time to gather evidence establishing the nature of the threat posed by the detained person. While the government’s evidentiary onus may not be heavy at the initial detention review (see above, at para. 93), it must be heavier when the government has had more time to investigate and document the threat. (c) Reasons for the Delay in Deportation", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-69", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 114–116", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "When reviewing detentions pending deportation, judges have assessed whether the delays have been caused by the detainees or the government: Sahin, at p. 231. In reviewing Mr. Almrei’s application for release, the Federal Court of Appeal stated that a reviewing judge could “discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time”: Almrei, 2005 FCA 54, at para. 58; see also Harkat, 2006 FC 628, at para. 30. Recourse by the government or the individual to applicable provisions of the IRPA that are reasonable in the circumstances and recourse by the individual to reasonable Charter challenges should not count against either party. On the other hand, an unexplained delay or lack of diligence should count against the offending party. (d) Anticipated Future Length of Detention\n\nIf there will be a lengthy detention before deportation or if the future detention time cannot be ascertained, this is a factor that weighs in favour of release. (e) Availability of Alternatives to Detention\n\nStringent release conditions, such as those imposed on Mr. Charkaoui and Mr. Harkat, seriously limit individual liberty. However, they are less severe than incarceration. Alternatives to lengthy detention pursuant to a certificate, such as stringent release conditions, must not be a disproportionate response to the nature of the threat.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-70", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 117–119", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "In other words, there must be detention reviews on a regular basis, at which times the reviewing judge should be able to look at all factors relevant to the justice of continued detention, including the possibility of the IRPA ’s detention provisions being misused or abused. Analogous principles apply to extended periods of release subject to onerous or restrictive conditions: these conditions must be subject to ongoing, regular review under a review process that takes into account all the above factors, including the existence of alternatives to the conditions.\n\nDo the provisions for review of detention under the IRPA ’s certificate scheme satisfy these requirements? To answer this question, we must examine ss. 83(3) and 84(2) in greater detail.\n\nSection 84(2) governs the release of foreign nationals. It requires the judge to consider whether the “release” of the detainee would pose a danger to security. This implies that the judge can consider terms and conditions that would neutralize the danger. The judge, if satisfied that the danger no longer exists or that it can be neutralized by conditions, may order the release.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-71", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 120–121", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 83(3), which applies to permanent residents, has a slightly different wording. It requires the judge to consider not whether the release would pose a danger as under s. 84(2), but whether the permanent resident continues to be a danger. An issue may arise as to whether this difference in wording affects the ability of the judge to fashion conditions and hence to order conditional release. In my view, there is no practical difference between saying a person’s release would be a danger and saying that the person is a danger. I therefore read s. 83(3), like s. 84(2), as enabling the judge to consider whether any danger attendant on release can be mitigated by conditions.\n\nOn this basis, I conclude that for both foreign nationals and permanent residents, the IRPA ’s certificate scheme provides a mechanism for review of detention, which permits the reviewing judge to fashion conditions that would neutralize the risk of danger upon release, and hence to order the release of the detainee.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-72", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 122–123", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "Reviewing judges have also developed a practice of periodic review in connection with release procedures: Charkaoui (Re), 2005 FC 248, at para. 86. In the immigration context, such periodic reviews must be understood to be required by ss. 7 and 12 of the Charter . The Federal Court of Appeal has suggested that once a foreign national has brought an application for release under s. 84(2), he or she cannot bring a new application except on the basis of (i) new evidence or (ii) a material change in circumstances since the previous application: Almrei, 2005 FCA 54; see also, Ahani, at paras. 14-15. Such an interpretation would lead to a holding that s. 84(2) is inconsistent with ss. 7 and 12; however, since s. 84(2) has already been found to infringe s. 9 and cannot be saved under s. 1, it is not necessary to decide this issue.\n\nIn summary, the IRPA , interpreted in conformity with the Charter , permits robust ongoing judicial review of the continued need for and justice of the detainee’s detention pending deportation. On this basis, I conclude that extended periods of detention pending deportation under the certificate provisions of the IRPA do not violate s. 7 or s. 12 of the Charter , provided that reviewing courts adhere to the guidelines set out above. Thus, the IRPA procedure itself is not unconstitutional on this ground. However, this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter .", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-73", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 124–125", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "These conclusions are consistent with English and American authority. Canada, it goes without saying, is not alone in facing the problem of detention in the immigration context in situations where deportation is difficult or impossible. Courts in the United Kingdom and the United States have suggested that detention in this context can be used only during the period where it is reasonably necessary for deportation purposes: R. v. Governor of Durham Prison, ex parte Singh, [1984] 1 All E.R. 983 (Q.B.); Zadvydas.\n\nA case raising similar issues is the decision of the House of Lords in A. v. Secretary of State for the Home Department, [2005] 3 All E.R. 169, [2004] UKHL 56 (“Re A”). This was an appeal brought by nine foreign nationals who were suspected of involvement in terrorism, but were not charged with any crime. The United Kingdom government sought to deport them, but in most cases this was impossible due to a risk of torture. So most of the individuals were detained at Belmarsh Prison under s. 23 of the Anti-terrorism, Crime and Security Act 2001 (U.K.), 2001, c. 24. This provision empowered the government to detain suspected international terrorists under the provisions governing detention pending deportation, despite the fact that removal from the United Kingdom was temporarily or indefinitely prevented, in derogation from art. 5 of the European Convention on Human Rights: see Chahal.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-74", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 126–127", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The government claimed that this derogation was necessary to combat the national security threat posed by Al-Qaeda terrorists. The House of Lords, by a majority of 8 to 1, accepted that Al-Qaeda terrorism represented a serious threat to the life of the nation, but seven of the eight Lords who accepted this premise nevertheless concluded that s. 23 was not strictly required by the exigencies of the situation. These same seven Lords also concluded that s. 23 was incompatible with art. 14 of the European Convention on Human Rights, because of the way it discriminated between nationals and non-nationals. The derogation permitting permanent detention of non-nationals treated them more harshly than nationals. Absent the possibility of deportation, it lost its character as an immigration provision, and hence constituted unlawful discrimination.\n\nThe finding in Re A of breach of the detention norms under the European Convention on Human Rights was predicated on the U.K. Act’s authorization of permanent detention. The IRPA , unlike the U.K. legislation under consideration in Re A, does not authorize indefinite detention and, interpreted as suggested above, provides an effective review process that meets the requirements of Canadian law.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-75", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 128–129", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The fairness of the detention review procedure arises as an independent issue. I concluded above that this procedure, like the certificate determination procedure, denies the right to a fair hearing and does so in a way that does not minimally impair the detainee’s rights. For the reasons given earlier, Parliament must therefore revisit the provisions for detention review in order to meaningfully protect the procedural rights of detainees. C. Do the Certificate and Detention Review Procedures Discriminate Between Citizens and Non-Citizens, Contrary to Section 15 of the Charter , and if so, Is the Discrimination Justified Under Section 1 of the Charter ?\n\nThe appellant Mr. Charkaoui argues that the IRPA certificate scheme discriminates against non‑citizens, contrary to s. 15(1) of the Charter . However, s. 6 of the Charter specifically allows for differential treatment of citizens and non‑citizens in deportation matters: only citizens are accorded the right to enter, remain in and leave Canada (s. 6(1)). A deportation scheme that applies to non‑citizens, but not to citizens, does not, for that reason alone, violate s. 15 of the Charter : Chiarelli.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-76", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 130–132", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is argued that while this is so, there are two ways in which the IRPA could, in some circumstances, result in discrimination. First, detention may become indefinite as deportation is put off or becomes impossible, for example because there is no country to which the person can be deported. Second, the government could conceivably use the IRPA not for the purpose of deportation, but to detain the person on security grounds. In both situations, the source of the problem is that the detention is no longer related, in effect or purpose, to the goal of deportation. In Re A, the legislation considered by the House of Lords expressly provided for indefinite detention; this was an important factor leading to the majority’s holding that the legislation went beyond the concerns of immigration legislation and thus wrongfully discriminated between nationals and non-nationals: paras. 54, 81, 134, 157-58, 180 and 229.\n\nEven though the detention of some of the appellants has been long — indeed, Mr. Almrei’s continues — the record on which we must rely does not establish that the detentions at issue have become unhinged from the state’s purpose of deportation. More generally, the answer to these concerns lies in an effective review process that permits the judge to consider all matters relevant to the detention, as discussed earlier in these reasons.\n\nI conclude that a breach of s. 15 of the Charter has not been established. D. Are the IRPA Certificate Provisions Inconsistent With the Constitutional Principle of the Rule of Law?", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-77", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 133–135", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant Mr. Charkaoui claims that the unwritten constitutional principle of the rule of law is infringed by two aspects of the IRPA scheme: the unavailability of an appeal of the designated judge’s determination that the certificate is reasonable; and the provision in s. 82 for the issuance of an arrest warrant by the executive (in the case of a permanent resident) or for mandatory arrest without a warrant following an executive decision (in the case of a foreign national).\n\nThe rule of law incorporates a number of themes. Most fundamentally, it requires government officials to exercise their authority according to law, and not arbitrarily: Roncarelli v. Duplessis, [1959] S.C.R. 121; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 748-49. It requires the creation and maintenance of an actual order of positive laws: Reference re Manitoba Language Rights. And it is linked to the principle of judicial independence: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island.\n\nMr. Charkaoui’s claim is based not on any of these themes, but on the content of the IRPA . But as this Court held in British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49, “it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation . . . based on its content” (para. 59). Even if this dictum leaves room for exceptions, Mr. Charkaoui has not established that the IRPA should be one of them.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-78", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 136–138", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "First, Mr. Charkaoui argues that the rule of law is violated by the unavailability of an appeal of the judge’s determination of the reasonableness of the certificate. But there is no constitutional right to an appeal (Kourtessis v. M.N.R., [1993] 2 S.C.R. 53); nor can such a right be said to flow from the rule of law in this context. The Federal Court is a superior court, not an administrative tribunal: Federal Courts Act , R.S.C. 1985, c. F‑7, s. 4 . Federal Court judges, when reviewing certificates under the IRPA , have all the powers of Federal Court judges and exercise their powers judicially. Moreover, the Federal Court of Appeal has reinforced the legality of the process by holding that it is appropriate to circumvent the s. 80(3) privative clause where the constitutionality of legislation is challenged (Charkaoui (Re), 2004 FCA 421, at paras. 47‑50) or where the named person alleges bias on the part of the designated judge (Zündel, Re (2004), 331 N.R. 180, 2004 FCA 394).\n\nSecond, Mr. Charkaoui argues that the rule of law is violated by the provision for arrest under a warrant issued by the executive (in the case of a permanent resident) or for automatic detention without a warrant (in the case of a foreign national). But the rule of law does not categorically prohibit automatic detention or detention on the basis of an executive decision. The constitutional protections surrounding arrest and detention are set out in the Charter , and it is hard to see what the rule of law could add to these provisions. IV. Conclusion\n\nThe scheme set up under Division 9 of Part 1 of the IRPA suffers from two defects that are inconsistent with the Charter .", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-79", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 139–140", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The first is that s. 78(g) allows for the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it causes. It is clear from approaches adopted in other democracies, and in Canada itself in other security situations, that solutions can be devised that protect confidential security information and at the same time are less intrusive on the person’s rights. It follows that the IRPA ’s procedure for the judicial confirmation of certificates and review of detention violates s. 7 of the Charter and has not been shown to be justified under s. 1 of the Charter . I would declare the procedure to be inconsistent with the Charter , and hence of no force or effect.\n\nHowever, in order to give Parliament time to amend the law, I would suspend this declaration for one year from the date of this judgment. If the government chooses to go forward with the proceedings to have the reasonableness of Mr. Charkaoui’s certificate determined during the one-year suspension period, the existing process under the IRPA will apply. After one year, the certificates of Mr. Harkat and Mr. Almrei (and of any other individuals whose certificates have been deemed reasonable) will lose the “reasonable” status that has been conferred on them, and it will be open to them to apply to have the certificates quashed. If the government intends to employ a certificate after the one-year delay, it will need to seek a fresh determination of reasonableness under the new process devised by Parliament. Likewise, any detention review occurring after the delay will be subject to the new process.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-80", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "paras 141–142", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "The second defect is found in s. 84(2) of the IRPA , which denies a prompt hearing to foreign nationals by imposing a 120-day embargo, after confirmation of the certificate, on applications for release. Counsel for the ministers submitted in oral argument that if this Court were to find that s. 84(2) violates the Charter , the appropriate remedy would be to strike s. 84(2) and read foreign nationals into s. 83. This is a good first step, but it does not provide a complete solution, since s. 83 deals with detention review only until the certificate has been determined to be reasonable, whereas s. 84(2) deals with detention review after it has been determined to be reasonable. Striking s. 84(2) would therefore leave no provision for review of detention of foreign nationals once the certificate has been deemed reasonable.\n\nAccordingly, I conclude that the appropriate remedy is to strike s. 84(2) as well as to read foreign nationals into s. 83 and to strike the words “until a determination is made under subsection 80(1)” from s. 83(2).", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-81", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 143", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "I would allow the appeals with costs to the appellants, and answer the constitutional questions as follows: 1. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, offend the principle of judicial independence protected by: (a) s. 96 of the Constitution Act, 1867 , or (b) the Preamble to the Constitution Act, 1867 ? Answer: No. 2. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, offend the constitutional principle of the rule of law? Answer: No. 3. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 7 of the Canadian Charter of Rights and Freedoms ? Answer: Yes. 4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: No. 5. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 9 of the Canadian Charter of Rights and Freedoms ? Answer: Yes. 6. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: No. 7. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 10 of the Canadian Charter of Rights and Freedoms ? Answer: Yes. 8.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-2345-82", + "doc_type": "caselaw", + "act_code": "2007 SCC 9", + "act_short": "Charkaoui", + "act_name": "Charkaoui v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9", + "marginal_note": "para 143", + "heading": "Security certificates and immigration detention; the Charter and procedural fairness", + "part": "Supreme Court of Canada", + "division": "", + "text": "If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: No. 9. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 12 of the Canadian Charter of Rights and Freedoms ? Answer: No. 10. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: It is unnecessary to answer this question. 11. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 15 of the Canadian Charter of Rights and Freedoms ? Answer: No. 12. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: It is unnecessary to answer this question.", + "current_to": "2007-02-23", + "last_amended": "", + "history": "Also reported: [2007] 1 SCR 350", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" + }, + { + "id": "scc-1937-1", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 1–2", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Court — In this appeal we hold that Suresh is entitled to a new deportation hearing under the Immigration Act, R.S.C. 1985, c. I-2. Suresh came to Canada from Sri Lanka in 1990. He was recognized as a Convention refugee in 1991 and applied for landed immigrant status. In 1995 the government detained him and started proceedings to deport him to Sri Lanka on grounds he was a member and fundraiser for the Liberation Tigers of Tamil Eelam (“LTTE”), an organization alleged to engage in terrorist activity in Sri Lanka. Suresh challenged the order for his deportation on various grounds of substance and procedure. In these reasons we examine the Immigration Act and the Canadian Charter of Rights and Freedoms , and find that deportation to face torture is generally unconstitutional and that some of the procedures followed in Suresh’s case did not meet the required constitutional standards. We therefore conclude that Suresh is entitled to a new hearing.\n\nThe appeal requires us to consider a number of issues: the standard to be applied in reviewing a ministerial decision to deport; whether the Charter precludes deportation to a country where the refugee faces torture or death; whether deportation on the basis of mere membership in an alleged terrorist organization unjustifiably infringes the Charter rights of free expression and free association; whether “terrorism” and “danger to the security of Canada” are unconstitutionally vague; and whether the deportation scheme contains adequate procedural safeguards to ensure that refugees are not expelled to a risk of torture or death.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-2", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 3–5", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to effectively meet this challenge.\n\nOn the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society — liberty, the rule of law, and the principles of fundamental justice — values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments.\n\nWe conclude that to deport a refugee to face a substantial risk of torture would generally violate s. 7 of the Charter . The Minister of Citizenship and Immigration must exercise her discretion to deport under the Immigration Act accordingly. Properly applied, the legislation conforms to the Charter . We reject the arguments that the terms “danger to the security of Canada” and “terrorism” are unconstitutionally vague and that ss. 19 and 53(1)(b) of the Act violate the Charter guarantees of free expression and free association, and conclude that the Act’s impugned procedures, properly followed, are constitutional. We believe these findings leave ample scope to Parliament to adopt new laws and devise new approaches to the pressing problem of terrorism.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-3", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 6–8", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Applying these conclusions, we find that the appellant Suresh made a prima facie case showing a substantial risk of torture if deported to Sri Lanka, and that his hearing did not provide the procedural safeguards required to protect his right not to be expelled to a risk of torture or death. This means that the case must be remanded to the Minister for reconsideration. The immediate result is that Suresh will remain in Canada until his new hearing is complete. Parliament’s scheme read in light of the Canadian Constitution requires no less. I. Facts and Judicial Proceedings\n\nThe appellant, Manickavasagam Suresh, was born in 1955. He is a Sri Lankan citizen of Tamil descent. Suresh entered Canada in October 1990, and was recognized as a Convention refugee by the Refugee Division of the Immigration and Refugee Board in April 1991. Recognition as a Convention refugee has a number of legal consequences; the one most directly relevant to this appeal is that, under s. 53(1) of the Immigration Act, generally the government may not return (“refouler”) a Convention refugee “to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion”.\n\nIn the summer of 1991, the appellant applied for landed immigrant status in Canada. His application was not finalized because, in late 1995, the Solicitor General of Canada and the Minister of Citizenship and Immigration commenced proceedings to deport Suresh to Sri Lanka on security grounds.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-4", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 9–11", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The first step in the procedure was a certificate under s. 40.1 of the Immigration Act alleging that Suresh was inadmissible to Canada on security grounds. The Solicitor General and the Minister filed the certificate with the Federal Court of Canada on October 17, 1995, and Suresh was detained the following day.\n\nThe s. 40.1 certificate was based on the opinion of the Canadian Security Intelligence Service (“CSIS”) that Suresh is a member of the LTTE, an organization that, according to CSIS, is engaged in terrorist activity in Sri Lanka and functions in Canada under the auspices of the World Tamil Movement (“WTM”). LTTE supports the cause of Tamils in the ongoing Sri Lankan civil war. The struggle is a protracted and bitter one. The Tamils are in rebellion against the democratically elected government of Sri Lanka. Their grievances are deep-rooted, and atrocities appear to be commonplace on both sides. The conflict has its roots in measures taken by a past government which, in the view of the Tamil minority, deprived it of basic linguistic, cultural and political rights. Subsequent governments have made attempts to accommodate these grievances, find a political solution, and re-establish civilian controls on the security and defence establishments, but a solution has yet to be found.\n\nHuman rights reporting on the practices of the Sri Lanka security forces indicates that the use of torture is widespread, particularly against persons suspected of membership in the LTTE. In a report dated 2001, Amnesty International cites frequent incidents of torture by the police and army, including a report that five labourers arrested on suspicion of involvement with the LTTE were tortured by police. One of them died apparently as a result of the torture.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-5", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 12–14", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The s. 40.1 certificate was referred to the Federal Court for determination “whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and information available” as required by s. 40.1(4)(d) — the second step in the deportation procedure. Pursuant to s. 40.1(5), the designated judge is entitled to receive and consider any evidence the judge “sees fit, whether or not the evidence or information is or would be admissible in a court of law”.\n\nIn August 1997, after 50 days of hearings, Teitelbaum J. upheld the s. 40.1 certificate, finding it “reasonable” under s. 40.1(4)(d) of the Act: (1997), 140 F.T.R. 88. Specifically, Teitelbaum J. found that: (1) Suresh had been a member of the LTTE since his youth and is now (or was at the time of Teitelbaum J.’s consideration) a member of the LTTE executive; (2) the WTM is part of the LTTE or at least an organization that supports the activities of the LTTE; (3) Suresh obtained refugee status “by wilful misrepresentation of facts” and lacks credibility; (4) there are reasonable grounds to believe the LTTE has committed terrorist acts; and (5) Tamils arrested by Sri Lankan authorities are badly mistreated and in a number of cases the mistreatment bordered on torture.\n\nA deportation hearing followed — the third step in the deportation procedure. The adjudicator found no reasonable grounds to conclude Suresh was directly engaged in terrorism under s. 19(1)(f)(ii), but held that he should be deported on grounds of membership in a terrorist organization under ss. 19(1)(f)(iii)(B) and 19(1)(e)(iv)(C).", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-6", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 15", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "On the same day, September 17, 1997, the Minister took the fourth step in the deportation process, notifying Suresh that she was considering issuing an opinion declaring him to be a danger to the security of Canada under s. 53(1)(b) of the Act, which permits the Minister to deport a refugee on security grounds even where the refugee’s “life or freedom” would be threatened by the return. In response to the Minister’s notification, Suresh submitted written arguments and documentary evidence, including reports indicating the incidence of torture, disappearances, and killings of suspected members of LTTE.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-7", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 16", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Donald Gautier, an immigration officer for Citizenship and Immigration Canada, considered the submissions and recommended that the Minister issue an opinion under s. 53(1)(b) that Suresh constituted a danger to the security of Canada. Noting Suresh’s links to LTTE, he stated that “[t]o allow Mr. Suresh to remain in this country and continue his activities runs counter to Canada’s international commitments in the fight against terrorism”. At the same time, Mr. Gautier acknowledged that Mr. Suresh “is not known to have personally committed any acts of violence either in Canada or Sri Lanka” and that his activities on Canadian soil were “non-violent” in nature. Gautier found that Suresh faced a risk on returning to Sri Lanka, but this was difficult to assess; might be tempered by his high profile; and was counterbalanced by Suresh’s terrorist activities in Canada. He concluded that, “on balance, there are insufficient humanitarian and compassionate considerations present to warrant extraordinary consideration”. Accordingly, on January 6, 1998, the Minister issued an opinion that Suresh constituted a danger to the security of Canada and should be deported pursuant to s. 53(1)(b). Suresh was not provided with a copy of Mr. Gautier’s memorandum, nor was he provided an opportunity to respond to it orally or in writing. No reasons are required under s. 53(1)(b) of the Immigration Act and none were given.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-8", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 17–18", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Suresh applied to the Federal Court for judicial review, alleging that the Minister’s decision was unreasonable; that the procedures under the Act, which did not require an oral hearing and independent decision-maker, were unfair; and that the Act unconstitutionally violated ss. 7 and 2 of the Charter . McKeown J. (1999), 65 C.R.R. (2d) 344, dismissed the application on all grounds. In his view, the Minister’s decision was not unreasonable and the Act was constitutional.\n\nOn the s. 7 challenge, McKeown J. found that the Minister, weighing the risk of exposing Suresh to torture against the danger that Suresh posed to the security of Canada, had satisfied the requirements of fundamental justice. McKeown J. acknowledged that the s. 7 Charter analysis should be informed by international law, and by the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36 (“CAT”), in particular. However, the CAT applies only where there are “substantial grounds” to believe that the person in question would be in danger of being tortured. Suresh had not met this test he held, in part because he had not submitted to the Minister a personal statement outlining why he believed he was at risk. McKeown J. concluded that the appellant’s expulsion would not “shock the conscience” of Canadians, the test for unconstitutionality under s. 7 of the Charter .", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-9", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 19–20", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "On the s. 2 challenge, McKeown J. found that Suresh’s activities as a fundraiser could not be considered “expression” under s. 2(b), since those activities were conducted in the service of a violent organization. He also found that Suresh’s activities were not protected under s. 2(d), since the association in question existed to commit acts of violence. As to Suresh’s vagueness arguments, McKeown J. held that neither the term “danger to the security of Canada” nor the term “terrorism” is unconstitutionally vague. Accordingly, McKeown J. dismissed the application.\n\nSuresh appealed to the Federal Court of Appeal. It too dismissed his application. Robertson J.A., for the court, held that the right under international law to be free from torture was limited by a country’s right to expel those who pose a security risk: [2000] 2 F.C. 592. He held, at paras. 31-32, that the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”), permits derogation from the prohibition against deportation to torture and that, in any event, Canadian statutory law supersedes customary international law. He agreed with McKeown J. that fundraising to support terrorist violence was not protected under s. 2. He also agreed that the Immigration Act procedures were adequate; in particular, no oral hearing was required to assess the risk of torture upon deportation. Finally, he agreed that neither the term “danger to the security of Canada” nor the term “terrorism” is unconstitutionally vague.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-10", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 21–23", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Robertson J.A. rejected Suresh’s argument that s. 53(1)(b) of the Act is unconstitutional insofar as it permits the Minister to expel a refugee to torture. He held that while deportation to torture violates s. 7’s guarantee of the right to life, liberty and security of the person, the violation was justified under s. 1. The objective of preventing Canada from becoming a haven for terrorist organizations was pressing and substantial and the deportation provision was a proportionate response to that objective bearing in mind the limitations on the power of deportation, its use as a measure of last resort and Canada’s international obligations to combat terrorism. Expulsion of a refugee who is a danger to the security of Canada would not violate the sense of justice or “shock the conscience” of most Canadians, notwithstanding that the refugee might face torture on return, because Canada would be neither the first nor the last link in the chain of causation leading to torture, but merely an involuntary intermediary.\n\nFinally, Robertson J.A. rejected the alternate argument that s. 53(1)(b), if constitutional, violated Suresh’s s. 7 right to security in its application. The administrative decision to deport Suresh properly considered the risk Suresh posed to Canada, acknowledged the risk of torture Suresh would face upon return to Sri Lanka, noted factors that might reduce the risk, and held that on balance it was outweighed by Canada’s interest in its own security.\n\nSuresh now appeals to this Court. II. Relevant Constitutional and Statutory Provisions", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-11", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 24", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Canadian Charter of Rights and Freedoms 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 2. Everyone has the following fundamental freedoms: . . . (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; . . . (d) freedom of association. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Immigration Act, R.S.C. 1985, c. I-2 19. (1) No person shall be granted admission who is a member of any of the following classes: . . . (e) persons who there are reasonable grounds to believe . . . (iv) are members of an organization that there are reasonable grounds to believe will . . . (C) engage in terrorism; (f) persons who there are reasonable grounds to believe . . . (ii) have engaged in terrorism, or (iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in . . . (B) terrorism, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; 53.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-12", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 24–25", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "(1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless . . . (b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada; III. Issues\n\nWe propose to consider the issues in the following order: 1. What is the appropriate standard of review with respect to ministerial decisions under s. 53(1)(b) of the Immigration Act? 2. Are the conditions for deportation in the Immigration Act constitutional? (a) Does the Act permit deportation to torture contrary to the Charter ? (b) Are the terms “danger to the security of Canada” and “terrorism” unconstitutionally vague? (c) Does deportation for membership in a terrorist organization unjustifiably violate the Charter guarantees of freedom of expression and freedom of association? 3. Are the procedures for deportation set out in the Immigration Act constitutionally valid? 4. Examining Suresh’s case in light of the conclusions to the foregoing questions, should the Minister’s order be set aside and a new hearing ordered? IV. Analysis 1. Standard of Review", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-13", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 26–27", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "This appeal involves a consideration of four types of issues: (1) constitutional review of the provisions of the Immigration Act; (2) whether Suresh’s presence in Canada constitutes a danger to national security; (3) whether Suresh faces a substantial risk of torture upon return to Sri Lanka; and (4) whether the procedures used by the Minister under the Act were adequate to protect Suresh’s constitutional rights.\n\nThe issues of the constitutionality of the deportation provisions of the Immigration Act do not involve review of ministerial decision-making. The fourth issue of the adequacy of the procedures under the Act will be considered separately later in these reasons. At this point, our inquiry is into the standard of review to be applied to the second and third issues — the Minister’s decisions on whether Suresh poses a risk to the security of Canada and whether he faces a substantial risk of torture on deportation. The latter was characterized by Robertson J.A. as a constitutional decision and hence requires separate treatment. It is our view that the threshold question is factual, that is whether there is a substantial risk of torture if the appellant is sent back, although this inquiry is mandated by s. 7 of the Charter . The constitutional issue is whether it would shock the Canadian conscience to deport Suresh once a substantial risk of torture has been established. This is when s. 7 is engaged. Since we are ordering a new hearing on procedural grounds, we are not required in this appeal to review the Minister’s decisions on whether Suresh’s presence constitutes a danger to the security of Canada and whether he faces a substantial risk of torture on deportation. However, we offer the following comments to assist courts in future ministerial review.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-14", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 28–29", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The trial judge and the Court of Appeal rejected Suresh’s submission that the highest standard of review should apply to the determination of the rights of refugees. Robertson J.A., while inclined to apply a deferential standard of review to whether Suresh constituted a danger to the security of Canada, concluded that the decision could be maintained on any standard. Robertson J.A. went on to state (at paras. 131-36) that while the Act and the Constitution place constraints on the Minister’s exercise of her discretion, these do not extend to a judicially imposed obligation to give particular weight to particular factors. On the question of whether he would face a substantial risk of torture on return, a question that he viewed as constitutional rather than merely one of judicial review, Robertson J.A. did not determine the applicable standard of review, concluding that even on the stringent standard of correctness the Minister’s decision should be upheld.\n\nThe first question is what standard should be adopted with respect to the Minister’s decision that a refugee constitutes a danger to the security of Canada. We agree with Robertson J.A. that the reviewing court should adopt a deferential approach to this question and should set aside the Minister’s discretionary decision if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors. The court should not reweigh the factors or interfere merely because it would have come to a different conclusion.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-15", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 30", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "This conclusion is mandated by Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, which reviewed the principles for determining the standard of review according to the functional and pragmatic approach. In Pushpanathan, the Court emphasized that the ultimate question is always what the legislature intended. One looks to the language of the statute as well as a number of factors to determine that intention. Here the language of the Act (the Minister must be “of the opinion” that the person constitutes a danger to the security of Canada) suggests a standard of deference. So, on the whole, do the factors to be considered: (1) the presence or absence of a clause negating the right of appeal; (2) the relative expertise of the decision-maker; (3) the purpose of the provision and the legislation generally; and (4) the nature of the question (Pushpanathan, supra, at paras. 29-38).", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-16", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 31", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The first factor suggests that Parliament intended only a limited right of appeal. Although the Minister’s s. 53(1)(b) opinion is not protected by a privative clause, it may only be appealed by leave of the Federal Court, Trial Division (s. 82.1(1)), and that leave decision may not itself be appealed (s. 82.2). The second factor, the relative expertise of the decision-maker, again favours deference. As stated in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, “[t]he fact that the formal decision-maker is the Minister is a factor militating in favour of deference” (para. 59). The Minister, as noted by Lord Hoffmann in Secretary of State for the Home Department v. Rehman, [2001] 3 W.L.R. 877 (H.L.), at para. 62, “has access to special information and expertise in . . . matters [of national security]”. The third factor — the purpose of the legislation — again favours deference. This purpose, as discussed in Pushpanathan, supra, at para. 73, is to permit a “humanitarian balance” of various interests — “the seriousness of the danger posed to Canadian society” on the one hand, and “the danger of persecution upon refoulement”on the other. Again, the Minister is in a superior position to a court in making this assessment. Finally, the nature of the case points to deference. The inquiry is highly fact-based and contextual. As in Baker, supra, at para. 61, the s. 53(1)(b) danger opinion “involves a considerable appreciation of the facts of that person’s case, and is not one which involves the application or interpretation of definitive legal rules”, suggesting it merits a wide degree of deference.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-17", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 32–33", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "These factors suggest that Parliament intended to grant the Minister a broad discretion in issuing a s. 53(1)(b) opinion, reviewable only where the Minister makes a patently unreasonable decision. It is true that the question of whether a refugee constitutes a danger to the security of Canada relates to human rights and engages fundamental human interests. However, it is our view that a deferential standard of ministerial review will not prevent human rights issues from being fully addressed, provided proper procedural safeguards are in place and provided that any decision to deport meets the constitutional requirements of the Charter .\n\nThe House of Lords has taken the same view in Rehman, supra. Lord Hoffmann, following the events of September 11, 2001, added the following postscript to his speech (at para. 62): I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove. [Emphasis added.]", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-18", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 34–35", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "It follows that the weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion (see, for instance, Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 607, where Iacobucci J. explained that a reviewing court should not disturb a decision based on a “broad discretion” unless the tribunal has “made some error in principle in exercising its discretion or has exercised its discretion in a capricious or vexatious manner”).\n\nThe Court’s recent decision in Baker, supra, did not depart from this view. Rather, it confirmed that the pragmatic and functional approach should be applied to all types of administrative decisions in recognition of the fact that a uniform approach to the determination of the proper standard of review is preferable, and that there may be special situations where even traditionally discretionary decisions will best be reviewed according to a standard other than the deferential standard which was universally applied in the past to ministerial decisions (see Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403).", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-19", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 36–37", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Court specified in Baker, supra, that a nuanced approach to determining the appropriate standard of review was necessary given the difficulty in rigidly classifying discretionary and non-discretionary decisions (paras. 54-55). The Court also made it clear in Baker that its approach “should not be seen as reducing the level of deference given to decisions of a highly discretionary nature” (para. 56) and, moreover, that any ministerial obligation to consider certain factors “gives the applicant no right to a particular outcome or to the application of a particular legal test” (para. 74). To the extent this Court reviewed the Minister’s discretion in that case, its decision was based on the ministerial delegate’s failure to comply with self-imposed ministerial guidelines, as reflected in the objectives of the Act, international treaty obligations and, most importantly, a set of published instructions to immigration officers.\n\nThe passages in Baker referring to the “weight” of particular factors (see paras. 68 and 73-75) must be read in this context. It is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors: see Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.); Re Sheehan and Criminal Injuries Compensation Board (1974), 52 D.L.R. (3d) 728 (Ont. C.A.); Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; Dagg, supra, at paras. 111-12, per La Forest J. (dissenting on other grounds).", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-20", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 38", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "This standard appropriately reflects the different obligations of Parliament, the Minister and the reviewing court. Parliament’s task is to establish the criteria and procedures governing deportation, within the limits of the Constitution. The Minister’s task is to make a decision that conforms to Parliament’s criteria and procedures as well as the Constitution. The court’s task, if called upon to review the Minister’s decision, is to determine whether the Minister has exercised her decision-making power within the constraints imposed by Parliament’s legislation and the Constitution. If the Minister has considered the appropriate factors in conformity with these constraints, the court must uphold his decision. It cannot set it aside even if it would have weighed the factors differently and arrived at a different conclusion.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-21", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 39", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "This brings us to the question of the standard of review of the Minister’s decision on whether the refugee faces a substantial risk of torture upon deportation. This question is characterized as constitutional by Robertson J.A., to the extent that the Minister’s decision to deport to torture must ultimately conform to s. 7 of the Charter : see Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, per La Forest J.; and United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, at para. 32. As mentioned earlier, whether there is a substantial risk of torture if Suresh is deported is a threshold question. The threshold question here is in large part a fact-driven inquiry. It requires consideration of the human rights record of the home state, the personal risk faced by the claimant, any assurances that the claimant will not be tortured and their worth and, in that respect, the ability of the home state to control its own security forces, and more. It may also involve a reassessment of the refugee’s initial claim and a determination of whether a third country is willing to accept the refugee. Such issues are largely outside the realm of expertise of reviewing courts and possess a negligible legal dimension. We are accordingly of the view that the threshold finding of whether Suresh faces a substantial risk of torture, as an aspect of the larger s. 53(1)( b ) opinion, attracts deference by the reviewing court to the Minister’s decision. The court may not reweigh the factors considered by the Minister, but may intervene if the decision is not supported by the evidence or fails to consider the appropriate factors. It must be recognized that the nature of the evidence required may be limited by the nature of the inquiry.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-22", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 39–40", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "This is consistent with the reasoning of this Court in Kindler, supra, at pp. 836-37, where considerable deference was shown to ministerial decisions involving similar considerations in the context of a constitutional revision, that is in the context of a decision where the s. 7 interest was engaged.\n\nBefore leaving the issue of standard of review, it is useful to underline the distinction between standard of review and the evidence required to establish particular facts in issue. For example, some authors suggest a lower evidentiary standard may govern decisions at entry (under ss. 2 and 19 of the Act) than applies to decisions to deport a landed Convention refugee under s. 53(1)(b): see J. C. Hathaway and C. J. Harvey “Framing Refugee Protection in the New World Disorder” (2001), 34 Cornell Int’l L.J. 257, at p. 288. This does not imply different standards of review. Different administrative decisions involve different factors, stemming from the statutory scheme and the particular issues raised. Yet the same standard of review may apply.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-23", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 41–42", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "We conclude that in reviewing ministerial decisions to deport under the Act, courts must accord deference to those decisions. If the Minister has considered the correct factors, the courts should not reweigh them. Provided the s. 53(1)(b) decision is not patently unreasonable — unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures — it should be upheld. At the same time, the courts have an important role to play in ensuring that the Minister has considered the relevant factors and complied with the requirements of the Act and the Constitution. 2. Are the Conditions for Deportation in the Immigration Act Constitutional? (a) Does the Act Permit Deportation to Torture Contrary to the Charter ?\n\nSuresh opposes his deportation to Sri Lanka on the ground, among others, that on return he faces a substantial risk of torture. McKeown J. found that Suresh had not shown that he personally would risk torture according to the “substantial grounds” test. His finding seems to conflict with that of the immigration officer who acknowledged “that there is a risk to Mr. Suresh on his return to Sri Lanka”, but concluded that “this is counterbalanced by the serious terrorist activities to which he is a party”. Acting on these findings, the Minister ordered Suresh deported.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-24", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 43–44", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 53 of the Immigration Act permits deportation “to a country where the person’s life or freedom would be threatened”. The question is whether such deportation violates s. 7 of the Charter . Torture is defined in Article 1 of the CAT as including the unlawful use of psychological or physical techniques to intentionally inflict severe pain and suffering on another, when such pain or suffering is inflicted by or with the consent of public officials. A similar definition of torture may be found in s. 269.1 of the Criminal Code , R.S.C. 1985, c. C-46 .\n\nSection 7 of the Charter guarantees “[e]veryone . . . the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. It is conceded that “everyone” includes refugees and that deportation to torture may deprive a refugee of liberty, security and perhaps life. The only question is whether this deprivation is in accordance with the principles of fundamental justice. If it is not, s. 7 is violated and, barring justification of the violation under s. 1 of the Charter , deportation to torture is unconstitutional.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-25", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 45", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The principles of fundamental justice are to be found in “the basic tenets of our legal system”: Burns, supra, at para. 70. “They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system”: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. The relevant principles of fundamental justice are determined by a contextual approach that “takes into account the nature of the decision to be made”: Kindler, supra, at p. 848, per McLachlin J. (as she then was). The approach is essentially one of balancing. As we said in Burns, “[i]t is inherent in the . . . balancing process that the outcome may well vary from case to case depending on the mix of contextual factors put into the balance” (para. 65). Deportation to torture, for example, requires us to consider a variety of factors, including the circumstances or conditions of the potential deportee, the danger that the deportee presents to Canadians or the country’s security, and the threat of terrorism to Canada. In contexts in which the most significant considerations are general ones, it is likely that the balance will be struck the same way in most cases. It would be impossible to say in advance, however, that the balance will necessarily be struck the same way in every case.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-26", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 46–47", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The inquiry into the principles of fundamental justice is informed not only by Canadian experience and jurisprudence, but also by international law, including jus cogens. This takes into account Canada’s international obligations and values as expressed in “[t]he various sources of international human rights law — declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, [and] customary norms”: Burns, at paras. 79-81; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 348, per Dickson C.J. (dissenting); see also Re B.C. Motor Vehicle Act, supra, at p. 512; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp. 1056-57; R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 750; and Baker, supra.\n\nDetermining whether deportation to torture violates the principles of fundamental justice requires us to balance Canada’s interest in combatting terrorism and the Convention refugee’s interest in not being deported to torture. Canada has a legitimate and compelling interest in combatting terrorism. But it is also committed to fundamental justice. The notion of proportionality is fundamental to our constitutional system. Thus we must ask whether the government’s proposed response is reasonable in relation to the threat. In the past, we have held that some responses are so extreme that they are per se disproportionate to any legitimate government interest: see Burns, supra. We must ask whether deporting a refugee to torture would be such a response.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-27", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 48–49", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "With these thoughts in mind, we turn to the question of whether the government may, consistent with the principles of fundamental justice, expel a suspected terrorist to face torture elsewhere: first from the Canadian perspective; then from the perspective of the international norms that inform s. 7. (i) The Canadian Perspective\n\nThe inquiry at this stage is whether, viewed from a Canadian perspective, returning a refugee to the risk of torture because of security concerns violates the principles of fundamental justice where the deportation is effected for reasons of national security. A variety of phrases have been used to describe conduct that would violate fundamental justice. The most frequent is conduct that would “‘shoc[k]’ the Canadian conscience” (see Kindler, supra, at p. 852, and Burns, supra, at para. 60). Without resorting to opinion polls, which may vary with the mood of the moment, is the conduct fundamentally unacceptable to our notions of fair practice and justice?", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-28", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 50", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "It can be confidently stated that Canadians do not accept torture as fair or compatible with justice. Torture finds no condonation in our Criminal Code ; indeed the Code prohibits it (see, for example, s. 269.1). The Canadian people, speaking through their elected representatives, have rejected all forms of state-sanctioned torture. Our courts ensure that confessions cannot be obtained by threats or force. The last vestiges of the death penalty were abolished in 1998 and Canada has not executed anyone since 1962: see An Act to amend the National Defence Act and to make consequential amendments to other Acts, S.C. 1998, c. 35. In Burns, the then Minister of Justice, in his decision on the order to extradite the respondents Burns and Rafay, emphasized that “in Canada, Parliament has decided that capital punishment is not an appropriate penalty for crimes committed here, and I am firmly committed to that position” (para. 76). While we would hesitate to draw a direct equation between government policy or public opinion at any particular moment and the principles of fundamental justice, the fact that successive governments and Parliaments have refused to inflict torture and the death penalty surely reflects a fundamental Canadian belief about the appropriate limits of a criminal justice system.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-29", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 51", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "When Canada adopted the Charter in 1982, it affirmed the opposition of the Canadian people to government-sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12. A punishment is cruel and unusual if it “is so excessive as to outrage standards of decency”: see R. v. Smith, [1987] 1 S.C.R. 1045, at pp. 1072-73, per Lamer J. (as he then was). It must be so inherently repugnant that it could never be an appropriate punishment, however egregious the offence. Torture falls into this category. The prospect of torture induces fear and its consequences may be devastating, irreversible, indeed, fatal. Torture may be meted out indiscriminately or arbitrarily for no particular offence. Torture has as its end the denial of a person’s humanity; this end is outside the legitimate domain of a criminal justice system: see, generally, E. Scarry, The Body in Pain: The Making and Unmaking of the World (1985), at pp. 27-59. Torture is an instrument of terror and not of justice. As Lamer J. stated in Smith, supra, at pp. 1073-74, “some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment”. As such, torture is seen in Canada as fundamentally unjust.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-30", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 52", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "We may thus conclude that Canadians reject government-sanctioned torture in the domestic context. However, this appeal focuses on the prospect of Canada expelling a person to face torture in another country. This raises the question whether s. 7 is implicated at all. On one theory, our inquiry need be concerned only with the Minister’s act of deporting and not with the possible consequences that the expelled refugee may face upon arriving in the destination country. If our s. 7 analysis is confined to what occurs on Canadian soil as a necessary and immediate result of the Minister’s decision, torture does not enter the picture. If, on the other hand, our analysis must take into account what may happen to the refugee in the destination country, we surely cannot ignore the possibility of grievous consequences such as torture and death, if a risk of those consequences is established.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-31", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 53", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "We discussed this issue at some length in Burns, supra. In that case, the United States sought the extradition of two Canadian citizens to face aggravated first degree murder charges in the state of Washington. The respondents Burns and Rafay contested the extradition on the grounds that the Minister of Justice had not sought assurances that the death penalty would not be imposed. We rejected the respondents’ argument that extradition in such circumstances would violate their s. 12 right not to be subjected to cruel and unusual treatment or punishment, finding that the nexus between the extradition order and the mere possibility of capital punishment was too remote to engage s. 12. We agreed, however, with the respondents’ argument under s. 7, writing that “[s]ection 7 is concerned not only with the act of extraditing, but also the potential consequences of the act of extradition” (para. 60 (emphasis in original)). We cited, in particular, Canada v. Schmidt, [1987] 1 S.C.R. 500, at p. 522, in which La Forest J. recognized that “in some circumstances the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country, may be such that it would violate the principles of fundamental justice to surrender an accused under those circumstances”. In that case, La Forest J. referred specifically to the possibility that a country seeking extradition might torture the accused on return.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-32", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 54–55", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "While the instant case arises in the context of deportation and not extradition, we see no reason that the principle enunciated in Burns should not apply with equal force here. In Burns, nothing in our s. 7 analysis turned on the fact that the case arose in the context of extradition rather than refoulement. Rather, the governing principle was a general one — namely, that the guarantee of fundamental justice applies even to deprivations of life, liberty or security effected by actors other than our government, if there is a sufficient causal connection between our government’s participation and the deprivation ultimately effected. We reaffirm that principle here. At least where Canada’s participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada’s participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand.\n\nWe therefore disagree with the Federal Court of Appeal’s suggestion that, in expelling a refugee to a risk of torture, Canada acts only as an “involuntary intermediary” (para. 120). Without Canada’s action, there would be no risk of torture. Accordingly, we cannot pretend that Canada is merely a passive participant. That is not to say, of course, that any action by Canada that results in a person being tortured or put to death would violate s. 7. There is always the question, as there is in this case, of whether there is a sufficient connection between Canada’s action and the deprivation of life, liberty, or security.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-33", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 56–57", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "While this Court has never directly addressed the issue of whether deportation to torture would be inconsistent with fundamental justice, we have indicated on several occasions that extraditing a person to face torture would be inconsistent with fundamental justice. As we mentioned above, in Schmidt, supra, La Forest J. noted that s. 7 is concerned not only with the immediate consequences of an extradition order but also with “the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country” (p. 522). La Forest J. went on to specifically identify the possibility that the requesting country might torture the accused and then to state that “[s]ituations falling far short of this may well arise where the nature of the criminal procedures or penalties in a foreign country sufficiently shocks the conscience as to make a decision to surrender a fugitive for trial there one that breaches the principles of fundamental justice enshrined in s. 7” (p. 522).\n\nA similar view was expressed by McLachlin J. in Kindler, supra. In that case, McLachlin J. wrote that in some instances the “social consensus” as to whether extradition would violate fundamental justice would be clear. “This would be the case if, for instance, the fugitive faced torture on return to his or her home country” (p. 851). Concurring, La Forest J. wrote, similarly, that “[t]here are, of course, situations where the punishment imposed following surrender — torture, for example — would be so outrageous to the values of the Canadian community that the surrender would be unacceptable” (p. 832).", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-34", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 58–59", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Canadian jurisprudence does not suggest that Canada may never deport a person to face treatment elsewhere that would be unconstitutional if imposed by Canada directly, on Canadian soil. To repeat, the appropriate approach is essentially one of balancing. The outcome will depend not only on considerations inherent in the general context but also on considerations related to the circumstances and condition of the particular person whom the government seeks to expel. On the one hand stands the state’s genuine interest in combatting terrorism, preventing Canada from becoming a safe haven for terrorists, and protecting public security. On the other hand stands Canada’s constitutional commitment to liberty and fair process. This said, Canadian jurisprudence suggests that this balance will usually come down against expelling a person to face torture elsewhere. (ii) The International Perspective\n\nWe have examined the argument that from the perspective of Canadian law to deport a Convention refugee to torture violates the principles of fundamental justice. However, that does not end the inquiry. The provisions of the Immigration Act dealing with deportation must be considered in their international context: Pushpanathan, supra. Similarly, the principles of fundamental justice expressed in s. 7 of the Charter and the limits on rights that may be justified under s. 1 of the Charter cannot be considered in isolation from the international norms which they reflect. A complete understanding of the Act and the Charter requires consideration of the international perspective.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-35", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 60", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "International treaty norms are not, strictly speaking, binding in Canada unless they have been incorporated into Canadian law by enactment. However, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada’s international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-36", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 61", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "It has been submitted by the intervener, Amnesty International, that the absolute prohibition on torture is a peremptory norm of customary international law, or jus cogens. Articles 53 and 64 of the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, provide that existing or new peremptory norms prevail over treaties. Article 53 defines a peremptory norm as a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. This raises the question of whether the prohibition on torture is a peremptory norm. Peremptory norms develop over time and by general consensus of the international community. This is the difficulty in interpreting international law; it is often impossible to pinpoint when a norm is generally accepted and to identify who makes up the international community. As noted by L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status (1988), at pp. 723-24: The clarification of the notion of jus cogens in international law is advancing, but is still far from being completed. On the other hand, the international community of States has been inactive in stating expressly which norms it recognizes as peremptory in the present-day international law. In the opinion of the present writer, this inactivity, and the consequent uncertainty as to which norms are peremptory, constitute at present the main problem of the viability of jus cogens. [Emphasis in original.]", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-37", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 62", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the case at bar, there are three compelling indicia that the prohibition of torture is a peremptory norm. First, there is the great number of multilateral instruments that explicitly prohibit torture: see Geneva Convention Relative to the Treatment of Prisoners of War (1949), Can. T.S. 1965 No. 20, p. 84, Article 3; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), Can. T.S. 1965 No. 20, p. 25, Article 3; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), Can. T.S. 1965 No. 20, p. 55, Article 3; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), Can. T.S. 1965 No. 20, p. 163, Article 3; Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, at 71 (1948), Article 5; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 3452 (XXX), UN Doc. A/10034 (1975); International Covenant on Civil and Political Rights (1966), Can. T.S. 1976 No. 47 (“ICCPR”), Article 7; European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), 213 U.N.T.S. 221, Article 3; American Convention on Human Rights (1969), 1144 U.N.T.S. 123, Article 5; African Charter on Human and Peoples’ Rights (1981), 21 I.L.M. 58, Article 5; Universal Islamic Declaration of Human Rights (1981), 9:2 The Muslim World League Journal 25, Article VII.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-38", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 63–64", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, Amnesty International submitted that no state has ever legalized torture or admitted to its deliberate practice and that governments accused of practising torture regularly deny their involvement, placing responsibility on individual state agents or groups outside the government’s control. Therefore, it argues that the weight of these domestic practices is further evidence of a universal acceptance of the prohibition on torture. Counsel for the respondents, while not conceding this point, did not refer this Court to any evidence of state practice to contradict this submission. However, it is noted in most academic writings that most, if not all states have officially prohibited the use of torture as part of their administrative practices, see : Hannikainen, supra, at p. 503.\n\nLast, a number of international authorities state that the prohibition on torture is an established peremptory norm: see Hannikainen, supra, at p. 509; M. N. Shaw, International Law (4th ed. 1997), at pp. 203-4; Prosecutor v. Furundzija, 38 I.L.M. 317 (1999) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, No. IT-95-17/1-T, December 10, 1998); R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827 (H.L.). Others do not explicitly set it out as a peremptory norm; however, they do generally accept that the protection of human rights or humanitarian rights is a peremptory norm: see I. Brownlie, Principles of Public International Law (5th ed. 1998), at p. 515, and C. Emanuelli, Droit international public: Contribution à l’étude du droit international selon une perspective canadienne (1998), at sections 251, 1394 and 1396.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-39", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 65–66", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although this Court is not being asked to pronounce on the status of the prohibition on torture in international law, the fact that such a principle is included in numerous multilateral instruments, that it does not form part of any known domestic administrative practice, and that it is considered by many academics to be an emerging, if not established peremptory norm, suggests that it cannot be easily derogated from. With this in mind, we now turn to the interpretation of the conflicting instruments at issue in this case.\n\nDeportation to torture is prohibited by both the ICCPR, which Canada ratified in 1976, and the CAT, which Canada ratified in 1987. The relevant provisions of the ICCPR read: Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law . . . . 2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. . . . While the provisions of the ICCPR do not themselves specifically address the permissibility of a state’s expelling a person to face torture elsewhere, General Comment 20 to the ICCPR makes clear that Article 7 is intended to cover that scenario, explaining that “. . . States parties must not expose individuals to the danger of torture . . . upon return to another country by way of their extradition, expulsion or refoulement” (para. 9).", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-40", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 67", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "We do not share Robertson J.A.’s view that General Comment 20 should be disregarded because it “contradicts” the clear language of Article 7. In our view, there is no contradiction between the two provisions. General Comment 20 does not run counter to Article 7; rather, it explains it. Nothing would prevent a state from adhering both to Article 7 and to General Comment 20, and General Comment 20 does not detract from rights preserved or provided by Article 7. The clear import of the ICCPR, read together with the General Comment 20, is to foreclose a state from expelling a person to face torture elsewhere.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-41", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 68", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The CAT takes the same stand. The relevant provisions of that document read: Article 1 1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever . . . may be invoked as a justification of torture. Article 3 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. [Emphasis added.] Article 16 2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-42", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 68–70", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The CAT’s import is clear: a state is not to expel a person to face torture, which includes both the physical and mental infliction of pain and suffering, elsewhere.\n\nRobertson J.A., however, held that the CAT’s clear proscription of deportation to torture must defer to Article 33(2) of the Refugee Convention, which permits a country to return (refouler) a refugee who is a danger to the country’s security. The relevant provisions of the Refugee Convention state: Article 33 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership or a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.\n\nArticle 33 of the Refugee Convention appears on its face to stand in opposition to the categorical rejection of deportation to torture in the CAT. Robertson J.A., faced with this apparent contradiction, attempted to read the two conventions in a way that minimized the contradiction, holding that the anti-deportation provisions of the CAT were not binding, but derogable.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-43", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 71", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "We are not convinced that the contradiction can be resolved in this way. It is not apparent to us that the clear prohibitions on torture in the CAT were intended to be derogable. First, the absence of an express prohibition against derogation in Article 3 of the CAT together with the “without prejudice” language of Article 16 do not seem to permit derogation. Nor does it follow from the assertion in Article 2(2) of CAT that “[n]o exceptional circumstances . . . may be invoked as a justification of torture”, that the absence of such a clause in the Article 3 refoulement provision permits acts leading to torture in exceptional circumstances. Moreover, the history of Article 16 of the CAT suggests that it was intended to leave the door open to other legal instruments providing greater protection, not to serve as the means for reducing protection. During the deliberations of the Working Group that drafted the CAT, Article 16 was characterized as a “saving clause affirming the continued validity of other instruments prohibiting punishments or cruel, inhuman, or degrading treatment”: Convention against Torture, travaux préparatoires, UN Doc. E/CN.4/1408, at p. 66. This undermines the suggestion that Article 16 can be used as a means of narrowing the scope of protection that the CAT was intended to provide.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-44", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 72–73", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "In our view, the prohibition in the ICCPR and the CAT on returning a refugee to face a risk of torture reflects the prevailing international norm. Article 33 of the Refugee Convention protects, in a limited way, refugees from threats to life and freedom from all sources. By contrast, the CAT protects everyone, without derogation, from state-sponsored torture. Moreover, the Refugee Convention itself expresses a “profound concern for refugees” and its principal purpose is to “assure refugees the widest possible exercise of . . . fundamental rights and freedoms” (Preamble). This negates the suggestion that the provisions of the Refugee Convention should be used to deny rights that other legal instruments make universally available to everyone.\n\nRecognition of the dominant status of the CAT in international law is consistent with the position taken by the UN Committee against Torture, which has applied Article 3(1) even to individuals who have terrorist associations. (The CAT provides for the creation of a Committee against Torture to monitor compliance with the treaty: see CAT, Part II, Articles 17-24.) More particularly, the Committee against Torture has advised that Canada should “[c]omply fully with article 3(1) . . . whether or not the individual is a serious criminal or security risk”: see Committee against Torture, Conclusions and Recommendations of the Committee against Torture: Canada, UN Doc. CAT/C/XXV/Concl.4, at para. 6(a).", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-45", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 74–76", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, we note that the Supreme Court of Israel sitting as the High Court of Justice and the House of Lords have rejected torture as a legitimate tool to use in combatting terrorism and protecting national security: H.C. 6536/95, Hat’m Abu Zayda v. Israel General Security Service, 38 I.L.M. 1471 (1999); Rehman, supra, at para. 54, per Lord Hoffmann.\n\nWe conclude that the better view is that international law rejects deportation to torture, even where national security interests are at stake. This is the norm which best informs the content of the principles of fundamental justice under s. 7 of the Charter . (iii) Application to Section 53(1)(b) of the Immigration Act\n\nThe Canadian rejection of torture is reflected in the international conventions to which Canada is a party. The Canadian and international perspectives in turn inform our constitutional norms. The rejection of state action leading to torture generally, and deportation to torture specifically, is virtually categoric. Indeed, both domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to interests on the other side of the balance, even security interests. This suggests that, barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter . To paraphrase Lord Hoffmann in Rehman, supra, at para. 54, states must find some other way of ensuring national security.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-46", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 77", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Minister is obliged to exercise the discretion conferred upon her by the Immigration Act in accordance with the Constitution. This requires the Minister to balance the relevant factors in the case before her. As stated in Rehman, supra, at para. 56, per Lord Hoffmann: The question of whether the risk to national security is sufficient to justify the appellant’s deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee. Similarly, Lord Slynn of Hadley stated, at para. 16: Whether there is . . . a real possibility [of an adverse effect on the U.K. even if it is not direct or immediate] is a matter which has to be weighed up by the Secretary of State and balanced against the possible injustice to th[e] individual if a deportation order is made. In Canada, the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter . It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-47", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 78–80", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1. (A violation of s. 7 will be saved by s. 1 “only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like”: see Re B.C. Motor Vehicle Act, supra, at p. 518; and New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 99.) Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because Article 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases.\n\nIn these circumstances, s. 53(1)(b) does not violate s. 7 of the Charter . What is at issue is not the legislation, but the Minister’s obligation to exercise the discretion s. 53 confers in a constitutional manner. (b) Are the Terms “Danger to the Security of Canada” and “Terrorism” Unconstitutionally Vague? (i) “Danger to the Security of Canada”\n\nIn order to deny the benefit of s. 53(1) to a person seeking its protection, the Minister must certify that the person constitutes a “danger to the security of Canada”. Suresh argues that this phrase is unconstitutionally vague.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-48", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 81–82", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "A vague law may be unconstitutional for either of two reasons: (1) because it fails to give those who might come within the ambit of the provision fair notice of the consequences of their conduct; or (2) because it fails to adequately limit law enforcement discretion: see R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. In the same case, this Court held that “a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate” (p. 643).\n\nRobertson J.A. found that the phrase “danger to the security of Canada”, which is not defined in the Immigration Act, is not unconstitutionally vague (paras. 56-64). He conceded that the phrase was imprecise but reasoned that whether a person poses a danger to the security of Canada could be determined by “the individual’s degree of association or complicity with a terrorist organization” (para. 63). The government similarly argues that the phrase is not unconstitutionally vague; it contends that the phrase “refer[s] to the possibility that someone’s presence is harmful to national security in terms of the inadmissible classes” listed in s. 19 and referred to in s. 53. It suggests that the phrase can be “interpreted in the light of international law as a whole” and submits that the security of Canada is dependent on the security of other countries. On this interpretation, it need not be shown that the person’s presence in Canada poses a risk here. All that need be shown is that deportation may have a result that, viewed generally, enhances the security of Canada.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-49", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 83–84", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "We agree with the government and Robertson J.A. that the phrase “danger to the security of Canada” is not unconstitutionally vague. However, we do not interpret the phrase exactly as he or the government suggests. We would not conflate s. 19’s reference to membership in a terrorist movement with “danger to the security of Canada”. While the two may be related, “danger to the security of Canada”, in our view, must mean something more than just “person described in s. 19”.\n\nWe would also, contrary to the government’s submission, distinguish “danger to the security of Canada” from “danger to the public”, although we recognize that the two phrases may overlap. The latter phrase clearly is intended to address threats to individuals in Canada, but its application is restricted by requiring that any individual who is declared to be a “danger to the public” have been convicted of a serious offence: Immigration Act, s. 53(1)(a), (c), and (d). The government’s suggested reading of “danger to the security of Canada” effectively does an end-run around the requirement in Article 33(2) of the Refugee Convention that no one may be returned (refoulé) as a danger to the community of the country unless he has first been convicted by a final judgment of a particularly serious crime.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-50", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 85", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Subject to these qualifications, we accept that a fair, large and liberal interpretation in accordance with international norms must be accorded to “danger to the security of Canada” in deportation legislation. We recognize that “danger to the security of Canada” is difficult to define. We also accept that the determination of what constitutes a “danger to the security of Canada” is highly fact-based and political in a general sense. All this suggests a broad and flexible approach to national security and, as discussed above, a deferential standard of judicial review. Provided the Minister is able to show evidence that reasonably supports a finding of danger to the security of Canada, courts should not interfere with the Minister’s decision.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-51", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 86", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The question arises whether the Minister must present direct evidence of a specific danger to the security of Canada. It has been argued that under international law the state must prove a connection between the terrorist activity and the security of the deporting country: Hathaway and Harvey, supra, at pp. 289-90. It has also been suggested that the travaux préparatoires to the Refugee Convention indicate that threats to the security of another state were not intended to qualify as a danger sufficient to permit refoulement to torture. Threats to the security of another state were arguably not intended to come within the term, nor were general concerns about terrorism intended to be sufficient: see Refugee Convention, travaux préparatoires, UN Doc. A/CONF.2/SR.16, at p. 8 (“Among the great mass of refugees it was inevitable that some persons should be tempted to engage in activities on behalf of a foreign Power against the country of their asylum, and it would be unreasonable to expect the latter not to safeguard itself against such a contingency”); see A. Grahl-Madsen, Commentary on the Refugee Convention, 1951 (1997), at p. 236 (“‘[T]he security of the country’ is invoked against acts of a rather serious nature endangering directly or indirectly the constitution (Government), the territorial integrity, the independence or the external peace of the country concerned”).", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-52", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 87–88", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Whatever the historic validity of insisting on direct proof of specific danger to the deporting country, as matters have evolved, we believe courts may now conclude that the support of terrorism abroad raises a possibility of adverse repercussions on Canada’s security: see Rehman, supra, per Lord Slynn of Hadley, at paras. 16-17. International conventions must be interpreted in the light of current conditions. It may once have made sense to suggest that terrorism in one country did not necessarily implicate other countries. But after the year 2001, that approach is no longer valid.\n\nFirst, the global transport and money networks that feed terrorism abroad have the potential to touch all countries, including Canada, and to thus implicate them in the terrorist activity. Second, terrorism itself is a worldwide phenomenon. The terrorist cause may focus on a distant locale, but the violent acts that support it may be close at hand. Third, preventive or precautionary state action may be justified; not only an immediate threat but also possible future risks must be considered. Fourth, Canada’s national security may be promoted by reciprocal cooperation between Canada and other states in combating international terrorism. These considerations lead us to conclude that to insist on direct proof of a specific threat to Canada as the test for “danger to the security of Canada” is to set the bar too high. There must be a real and serious possibility of adverse effect to Canada. But the threat need not be direct; rather it may be grounded in distant events that indirectly have a real possibility of harming Canadian security.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-53", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 89–90", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "While the phrase “danger to the security of Canada” must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, the fact remains that to return (refouler) a refugee under s. 53(1)(b) to torture requires evidence of a serious threat to national security. To suggest that something less than serious threats founded on evidence would suffice to deport a refugee to torture would be to condone unconstitutional application of the Immigration Act. Insofar as possible, statutes must be interpreted to conform to the Constitution. This supports the conclusion that while “danger to the security of Canada” must be given a fair, large and liberal interpretation, it nevertheless demands proof of a potentially serious threat.\n\nThese considerations lead us to conclude that a person constitutes a “danger to the security of Canada” if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be “serious”, in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-54", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 91–93", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "This definition of “danger to the security of Canada” does not mean that Canada is unable to deport those who pose a risk to individual Canadians, but not the country. A different provision, the “danger to the public” provision, allows the government to deport those who pose no danger to the security of the country per se — those who pose a danger to Canadians, as opposed to a danger to Canada — provided they have committed a serious crime. Moreover, if a refugee is wanted for crimes in a country that will not torture him or her on return, the government may be free to extradite him or her to face those charges, whether or not he or she has committed crimes in Canada.\n\nWe are satisfied that the term “danger to the security of Canada”, defined as here suggested, gives those who might come within the ambit of the provision fair notice of the consequences of their conduct, while adequately limiting law enforcement discretion. We hold, therefore, that the term is not unconstitutionally vague. (ii) “Terrorism”\n\nThe term “terrorism” is found in s. 19 of the Immigration Act, dealing with denial of refugee status upon arrival in Canada. The Minister interpreted s. 19 as applying to terrorist acts post-admission and relied on alleged terrorist associations in Canada in seeking Suresh’s deportation under s. 53(1)(b), which refers to a class of persons falling under s. 19. We do not in these reasons seek to define terrorism exhaustively — a notoriously difficult endeavour — but content ourselves with finding that the term provides a sufficient basis for adjudication and hence is not unconstitutionally vague. We share the view of Robertson J.A. that the term is not inherently ambiguous “even if the full meaning . . . must be determined on an incremental basis” (para. 69).", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-55", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 94", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "One searches in vain for an authoritative definition of “terrorism”. The Immigration Act does not define the term. Further, there is no single definition that is accepted internationally. The absence of an authoritative definition means that, at least at the margins, “the term is open to politicized manipulation, conjecture, and polemical interpretation”: factum of the intervener Canadian Arab Federation (“CAF”), at para. 8; see also W. R. Farrell, The U.S. Government Response to Terrorism: In Search of an Effective Strategy (1982), at p. 6 (“The term [terrorism] is somewhat ‘Humpty Dumpty’ — anything we choose it to be”); O. Schachter, “The Extraterritorial Use of Force Against Terrorist Bases” (1989), 11 Houston J. Int’l L. 309, at p. 309 (“[n]o single inclusive definition of international terrorism has been accepted by the United Nations or in a generally accepted multilateral treaty”); G. Levitt, “Is ‘Terrorism’ Worth Defining?” (1986), 13 Ohio N.U. L. Rev. 97, at p. 97 (“The search for a legal definition of terrorism in some ways resembles the quest for the Holy Grail”); C. C. Joyner, “Offshore Maritime Terrorism: International Implications and the Legal Response” (1983), 36 Naval War C. Rev. 16, at p. 20 (terrorism’s “exact status under international law remains open to conjecture and polemical interpretation”); and J. B. Bell, A Time of Terror: How Democratic Societies Respond to Revolutionary Violence (1978), at p. x (“The very word [terrorism] becomes a litmus test for dearly held beliefs, so that a brief conversation on terrorist matters with almost anyone reveals a special world view, an interpretation of the nature of man, and a glimpse into a desired future.”)", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-56", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 95", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Even amongst those who agree on the definition of the term, there is considerable disagreement as to whom the term should be attached: see, e.g., I. M. Porras, “On Terrorism: Reflections on Violence and the Outlaw” (1994), Utah L. Rev. 119, at p. 124 (noting the general view that “terrorism” is poorly defined but stating that “[w]ith ‘terrorism’ . . . everyone means the same thing. What changes is not the meaning of the word, but rather the groups and activities that each person would include or exclude from the list”); D. Kash, “Abductions of Terrorists in International Airspace and on the High Seas” (1993), 8 Fla. J. Int’l L. 65, at p. 72 (“[A]n act that one state considers terrorism, another may consider as a valid exercise of resistance”). Perhaps the most striking example of the politicized nature of the term is that Nelson Mandela’s African National Congress was, during the apartheid era, routinely labelled a terrorist organization, not only by the South African government but by much of the international community.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-57", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 96", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "We are not persuaded, however, that the term “terrorism” is so unsettled that it cannot set the proper boundaries of legal adjudication. The recently negotiated International Convention for the Suppression of the Financing of Terrorism, GA Res. 54/109, December 9, 1999, approaches the definitional problem in two ways. First, it employs a functional definition in Article 2(1)(a), defining “terrorism” as “[a]n act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex”. The annex lists nine treaties that are commonly viewed as relating to terrorist acts, such as the Convention for the Suppression of the Unlawful Seizure of Aircraft, Can. T.S. 1972 No. 23, the Convention on the Physical Protection of Nuclear Material, 18 I.L.M. 1419, and the International Convention for the Suppression of Terrorist Bombings, 37 I.L.M. 249. Second, the Convention supplements this offence-based list with a stipulative definition of terrorism. Article 2(1)(b) defines “terrorism” as: Any . . . act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-58", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 97", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "In its submission to this Court, the CAF argued that this Court should adopt a functional definition of terrorism, rather than a stipulative one. The argument is that defining terrorism by reference to specific acts of violence (e.g. “hijacking, hostage taking and terrorist bombing”) would minimize politicization of the term (CAF factum, at paras. 11-14). It is true that the functional approach has received strong support from international law scholars and state representatives — support that is evidenced by the numerous international legal instruments that eschew stipulative definitions in favour of prohibitions on specific acts of violence. While we are not unaware of the danger that the term “terrorism” may be manipulated, we are not persuaded that it is necessary or advisable to altogether eschew a stipulative definition of the term in favour of a list that may change over time and that may in the end necessitate distinguishing some (proscribed) acts from other (non-proscribed) acts by reliance on a term like “terrorism”. (We note that the CAF, in listing acts, at para. 11, that might be prohibited under a functional definition, lists “terrorist bombing” — a category that clearly would not avoid the necessity of defining “terrorism”.)", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-59", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 98–99", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "In our view, it may safely be concluded, following the International Convention for the Suppression of the Financing of Terrorism, that “terrorism” in s. 19 of the Act includes any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”. This definition catches the essence of what the world understands by “terrorism”. Particular cases on the fringes of terrorist activity will inevitably provoke disagreement. Parliament is not prevented from adopting more detailed or different definitions of terrorism. The issue here is whether the term as used in the Immigration Act is sufficiently certain to be workable, fair and constitutional. We believe that it is. (iii) Conclusion\n\nWe conclude that the terms “danger to the security of Canada” and “terrorism” are not unconstitutionally vague. Applying them to the facts found in this case, they would prima facie permit the deportation of Suresh provided the Minister certifies him to be a substantial danger to Canada and provided he is found to be engaged in terrorism or a member of a terrorist organization as set out in s. 19(1)(e) and (f) of the Immigration Act. (c) Does Deportation for Membership in a Terrorist Organization Unjustifiably Violate the Charter Guarantees of Freedom of Expression and Freedom of Association?", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-60", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 100–101", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Suresh argues that the Minister’s issuance of the certificate under s. 40.1 of the Immigration Act and the order declaring him a danger to the security of Canada under s. 53(1)(b) on the ground that he was a member of the LTTE violate his Charter rights of free expression and free association and cannot be justified. He points out that he has not been involved in actual terrorist activity in Canada, but merely in fund-raising and support activities that may, in some part, contribute to the civil war efforts of Tamils in Sri Lanka. He also points out that it is not a criminal offence to belong to such an organization and that the government seeks to deport him for something that Canadian citizens may lawfully do without sanction. He suggests that inclusion of mere membership in an organization that has been or will be involved in acts of terrorism unjustifiably limits the freedom of Convention refugees to express their views on dissident movements outside the country, as well as their freedom to associate with other people in Canada who come from similar backgrounds. He points out that the alleged terrorist organizations he was found to have been a member of are engaged in many positive endeavours to improve the lives of people in Canada and are not involved in violence here.\n\nThe government, for its part, argues that support of organizations that have engaged in or may assist terrorism is not constitutionally protected expression or association. It argues that constitutional rights cannot be extended to inflict harm on others. This is so, in the government’s submission, even though many of the activities of the organization may be laudable. Accordingly, it says, ss. 2( b ) and 2( d ) of the Charter do not apply.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-61", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 102–103", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 19 of the Immigration Act applies to the entry of refugees into Canada. The Refugee Convention, and following it the Immigration Act, distinguish between the power of a state to refuse entry to a refugee, and its power to deport or “refouler” the refugee once the refugee is established in the country as a Convention refugee. The powers of a state to refuse entry are broader than to deport. The broader powers to refuse entry are based inter alia on the need to prevent criminals escaping justice in their own country from entering into Canada. No doubt the natural desire of states to reject unsuitable persons who by their conduct have put themselves “beyond the pale” also is a factor. See, generally, Hathaway and Harvey, supra.\n\nThe main purport of s. 19(1) is to permit Canada to refuse entry to persons who are or have been engaged in terrorism or who are or have been members of terrorist organizations. However, the Immigration Act uses s. 19(1) in a second and different way. It uses it in s. 53(1), the deportation section, to define the class of Convention refugees who may be deported because they constitute a danger to the security of Canada. Thus a Convention refugee like Suresh may be deported if he comes within a class of persons defined in s. 19(1) and constitutes a danger to the security of Canada.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-62", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 104–106", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "At this point, an ambiguity in the combination of ss. 53 and 19 arises. Is the class of persons designated by the reference to s. 19 those persons who at entry were or had been associated with terrorist acts or members of terrorist organizations? Or was Parliament’s intention to include those who after entry committed terrorist acts or were members of terrorist organizations? The Minister interprets s. 19, as incorporated into s. 53, as including conduct of refugees after entry.\n\nWe do not find it necessary to resolve this ambiguity, as in our opinion on either interpretation, s. 19 as incorporated into s. 53 does not breach the rights of free expression and association guaranteed by ss. 2( b ) and 2( d ) of the Charter . If s. 19 , as used in s. 53 , is interpreted as referring only to conduct prior to the point of entry, no constitutional problem arises. On the other hand, if it is interpreted as referring to post-entry conduct, we are satisfied that the conduct caught by the section, interpreted properly by the Minister, fails to attract constitutional protection because it would be conduct associated with violent activity.\n\nSection 53, as discussed earlier in connection with deportation to face torture, requires the Minister to balance a variety of factors relating on the one hand to concerns of national security, and to fair process to the Convention refugee on the other. In balancing these factors, the Minister must exercise her discretion in conformity with the values of the Charter .", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-63", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 107–108", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is established that s. 2 of the Charter does not protect expressive or associational activities that constitute violence: Keegstra, supra. This Court has, it is true, given a broad interpretation to freedom of expression, extending it, for example, to hate speech and perhaps even threats of violence: Keegstra; R. v. Zundel, [1992] 2 S.C.R. 731. At the same time, the Court has made plain that the restriction of such expression may be justified under s. 1 of the Charter : see Keegstra, at pp. 732-33. The effect of s. 2(b) and the justification analysis under s. 1 of the Charter suggest that expression taking the form of violence or terror, or directed towards violence or terror, is unlikely to find shelter in the guarantees of the Charter .\n\nThe Minister’s discretion to deport under s. 53 of the Immigration Act is confined, on any interpretation of the section, to persons who have been engaged in terrorism or are members of terrorist organizations, and who also pose a threat to the security of Canada. Persons associated with terrorism or terrorist organizations — the focus of this argument — are, on the approach to terrorism suggested above, persons who are or have been associated with things directed at violence, if not violence itself. It follows that so long as the Minister exercises her discretion in accordance with the Act, there will be no ss. 2( b ) or (d) Charter violation.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-64", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 109", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Suresh argues that s. 19 is so broadly drafted that it has the potential to catch persons who are members of or participate in the activities of a terrorist organization in ignorance of its terrorist activities. He points out that many organizations alleged to support terrorism also support humanitarian aid both in Canada and abroad. Indeed, he argues that this is so of the LTTE, the association to which he is alleged to belong. While it seems clear on the evidence that Suresh was not ignorant of the LTTE’s terrorist activities, he argues that it may be otherwise for others who were members or contributed to its activities. Thus without knowingly advocating terrorism and violence, they may be found to be part of the organization and hence subject to deportation. This, he argues, would clearly violate ss. 2( b ) and 2( d ) of the Charter .", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-65", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 110–112", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "We believe that it was not the intention of Parliament to include in the s. 19 class of suspect persons those who innocently contribute to or become members of terrorist organizations. This is supported by the provision found at the end of s. 19, which exempts from the s. 19 classes “persons who have satisfied the Minister that their admission would not be detrimental to the national interest”. Section 19 must therefore be read as permitting a refugee to establish that his or her continued residence in Canada will not be detrimental to Canada, notwithstanding proof that the person is associated with or is a member of a terrorist organization. This permits a refugee to establish that the alleged association with the terrorist group was innocent. In such case, the Minister, exercising her discretion constitutionally, would find that the refugee does not fall within the targeted s. 19 class of persons eligible for deportation on national security grounds.\n\nIt follows that the appellant has not established that s. 53’s reference to s. 19 unjustifiably violates his Charter rights of freedom of expression and freedom of association. Moreover, since there is no s. 2 violation, there is no basis to interfere with the s. 40.1 certificate that was issued in October 1995.\n\nThis brings us to Suresh’s final argument, that the process by which the Minister assessed the risk of torture he faces should he be returned to Sri Lanka was flawed and violated his constitutional rights by unjustly exposing him to the risk of torture. 3. Are the Procedures for Deportation Set Out in the Immigration Act Constitutionally Valid?", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-66", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 113", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "This appeal requires us to determine the procedural protections to which an individual is entitled under s. 7 of the Charter . In doing so, we find it helpful to consider the common law approach to procedural fairness articulated by L’Heureux-Dubé J. in Baker, supra. In elaborating what is required by way of procedural protection under s. 7 of the Charter in cases of this kind, we wish to emphasize that our proposals should be applied in a manner sensitive to the context of specific factual situations. What is important are the basic principles underlying these procedural protections. The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty. As Professor Hogg has said, “The common law rules [of procedural fairness] are in fact basic tenets of the legal system, and they have evolved in response to the same values and objectives as s. 7”: see P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.) vol. 2, at para. 44.20. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-13, Wilson J. recognized that the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness. Section 7 protects substantive as well as procedural rights: Re B.C. Motor Vehicle Act, supra. Insofar as procedural rights are concerned, the common law doctrine summarized in Baker, supra, properly recognizes the ingredients of fundamental justice.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-67", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 114", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "We therefore find it appropriate to look to the factors discussed in Baker in determining not only whether the common law duty of fairness has been met, but also in deciding whether the safeguards provided satisfy the demands of s. 7. In saying this, we emphasize that, as is the case for the substantive aspects of s. 7 in connection with deportation to torture, we look to the common law factors not as an end in themselves, but to inform the s. 7 procedural analysis. At the end of the day, the common law is not constitutionalized; it is used to inform the constitutional principles that apply to this case.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-68", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 115", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "What is required by the duty of fairness — and therefore the principles of fundamental justice — is that the issue at hand be decided in the context of the statute involved and the rights affected: Baker, supra, at para. 21; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per Sopinka J. More specifically, deciding what procedural protections must be provided involves consideration of the following factors: (1) the nature of the decision made and the procedures followed in making it, that is, “the closeness of the administrative process to the judicial process”; (2) the role of the particular decision within the statutory scheme; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed; and (5) the choice of procedure made by the agency itself: Baker, supra, at paras. 23-27. This is not to say that other factors or considerations may not be involved. This list of factors is non-exhaustive in determining the common law duty of fairness: Baker, supra, at para. 28. It must necessarily be so in determining the procedures demanded by the principles of fundamental justice.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-69", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 116–117", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The nature of the decision to deport bears some resemblance to judicial proceedings. While the decision is of a serious nature and made by an individual on the basis of evaluating and weighing risks, it is also a decision to which discretion must attach. The Minister must evaluate not only the past actions of and present dangers to an individual under her consideration pursuant to s. 53, but also the future behaviour of that individual. We conclude that the nature of the decision militates neither in favour of particularly strong, nor particularly weak, procedural safeguards.\n\nThe nature of the statutory scheme suggests the need for strong procedural safeguards. While the procedures set up under s. 40.1 of the Immigration Act are extensive and aim to ensure that certificates under that section are issued fairly and allow for meaningful participation by the person involved, there is a disturbing lack of parity between these protections and the lack of protections under s. 53(1)(b). In the latter case, there is no provision for a hearing, no requirement of written or oral reasons, no right of appeal — no procedures at all, in fact. As L’Heureux-Dubé J. stated in Baker, supra, “[g]reater procedural protections . . . will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted” (para. 24). This is particularly so where, as here, Parliament elsewhere in the Act has constructed fair and systematic procedures for similar measures.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-70", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 118–119", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The third factor requires us to consider the importance of the right affected. As discussed above, the appellant’s interest in remaining in Canada is highly significant, not only because of his status as a Convention refugee, but also because of the risk of torture he may face on return to Sri Lanka as a member of the LTTE. The greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter . Deportation from Canada engages serious personal, financial and emotional consequences. It follows that this factor militates in favour of heightened procedural protections under s. 53(1)( b ) . Where, as here, a person subject to a s. 53(1)( b ) opinion may be subjected to torture, this factor requires even more substantial protections.\n\nAs discussed above, Article 3 of the CAT, which explicitly prohibits the deportation of persons to states where there are “substantial grounds” for believing that the person would be “in danger of being subjected to torture”, informs s. 7 of the Charter . It is only reasonable that the same executive that bound itself to the CAT intends to act in accordance with the CAT’s plain meaning. Given Canada’s commitment to the CAT, we find that the appellant had the right to procedural safeguards, at the s. 53(1)( b ) stage of the proceedings. More particularly, the phrase “substantial grounds” raises a duty to afford an opportunity to demonstrate and defend those grounds.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-71", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 120–121", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The final factor we consider is the choice of procedures made by the agency. In this case, the Minister is free under the terms of the statute to choose whatever procedures she wishes in making a s. 53(1)(b) decision. As noted above, the Minister must be allowed considerable discretion in evaluating future risk and security concerns. This factor also suggests a degree of deference to the Minister’s choice of procedures since Parliament has signaled the difficulty of the decision by leaving to the Minister the choice of how best to make it. At the same time, this need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees like Suresh, who if deported may face torture and violations of human rights in which Canada can neither constitutionally, nor under its international treaty obligations, be complicit.\n\nWeighing these factors together with all the circumstances, we are of the opinion that the procedural protections required by s. 7 in this case do not extend to the level of requiring the Minister to conduct a full oral hearing or a complete judicial process. However, they require more than the procedure required by the Act under s. 53(1)(b) — that is, none — and they require more than Suresh received.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-72", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 122", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "We find that a person facing deportation to torture under s. 53(1)(b) must be informed of the case to be met. Subject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents, this means that the material on which the Minister is basing her decision must be provided to the individual, including memoranda such as Mr. Gautier’s recommendation to the Minister. Furthermore, fundamental justice requires that an opportunity be provided to respond to the case presented to the Minister. While the Minister accepted written submissions from the appellant in this case, in the absence of access to the material she was receiving from her staff and on which she based much of her decision, Suresh and his counsel had no knowledge of which factors they specifically needed to address, nor any chance to correct any factual inaccuracies or mischaracterizations. Fundamental justice requires that written submissions be accepted from the subject of the order after the subject has been provided with an opportunity to examine the material being used against him or her. The Minister must then consider these submissions along with the submissions made by the Minister’s staff.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-73", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 123–124", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "Not only must the refugee be informed of the case to be met, the refugee must also be given an opportunity to challenge the information of the Minister where issues as to its validity arise. Thus the refugee should be permitted to present evidence pursuant to s. 19 of the Act showing that his or her continued presence in Canada will not be detrimental to Canada, notwithstanding evidence of association with a terrorist organization. The same applies to the risk of torture on return. Where the Minister is relying on written assurances from a foreign government that a person would not be tortured, the refugee must be given an opportunity to present evidence and make submissions as to the value of such assurances.\n\nIt may be useful to comment further on assurances. A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-74", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 125–126", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "In evaluating assurances by a foreign government, the Minister may also wish to take into account the human rights record of the government giving the assurances, the government’s record in complying with its assurances, and the capacity of the government to fulfill the assurances, particularly where there is doubt about the government’s ability to control its security forces. In addition, it must be remembered that before becoming a Convention refugee, the individual involved must establish a well-founded fear of persecution (although not necessarily torture) if deported.\n\nThe Minister must provide written reasons for her decision. These reasons must articulate and rationally sustain a finding that there are no substantial grounds to believe that the individual who is the subject of a s. 53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment, so long as the person under consideration has raised those arguments. The reasons must also articulate why, subject to privilege or valid legal reasons for not disclosing detailed information, the Minister believes the individual to be a danger to the security of Canada as required by the Act. In addition, the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr. Gautier. Mr. Gautier’s report, explaining to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor’s brief than a statement of reasons for a decision.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-75", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 127", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "These procedural protections need not be invoked in every case, as not every case of deportation of a Convention refugee under s. 53(1)(b) will involve risk to an individual’s fundamental right to be protected from torture or similar abuses. It is for the refugee to establish a threshold showing that a risk of torture or similar abuse exists before the Minister is obliged to consider fully the possibility. This showing need not be proof of the risk of torture to that person, but the individual must make out a prima facie case that there may be a risk of torture upon deportation. If the refugee establishes that torture is a real possibility, the Minister must provide the refugee with all the relevant information and advice she intends to rely on, provide the refugee an opportunity to address that evidence in writing, and after considering all the relevant information, issue responsive written reasons. This is the minimum required to meet the duty of fairness and fulfill the requirements of fundamental justice under s. 7 of the Charter .", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-76", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 128", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Minister argues that even if the procedures used violated Suresh’s s. 7 rights, that violation is justified as a reasonable limit under s. 1 of the Charter . Despite the legitimate purpose of s. 53(1)(b) of the Immigration Act in striking a balance between the need to fulfil Canada’s commitments with respect to refugees and the maintenance of the safety and good order of Canadian society, the lack of basic procedural protections provided to Suresh cannot be justified by s. 1 in our view. Valid objectives do not, without more, suffice to justify limitations on rights. The limitations must be connected to the objective and be proportional. Here the connection is lacking. A valid purpose for excepting some Convention refugees from the protection of s. 53(1) of the Act does not justify the failure of the Minister to provide fair procedures where this exception involves a risk of torture upon deportation. Nor do the alleged fundraising activities of Suresh rise to the level of exceptional conditions contemplated by Lamer J. in Re B.C. Motor Vehicle Act, supra. Consequently, the issuance of a s. 53(1)(b) opinion relating to him without the procedural protections mandated by s. 7 is not justified under s. 1. 4. Should the Minister’s Order Be Set Aside and a New Hearing Ordered?", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-77", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "paras 129–130", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "We conclude that generally to deport a refugee, where there are grounds to believe that this would subject the refugee to a substantial risk of torture, would unconstitutionally violate the Charter ’s s. 7 guarantee of life, liberty and security of the person. This said, we leave open the possibility that in an exceptional case such deportation might be justified either in the balancing approach under ss. 7 or 1 of the Charter . We reject the argument that the terms “danger to the security of Canada” and “terrorism” are unconstitutionally vague. We also reject the argument that s. 53 , by its reference to s. 19 , unconstitutionally violates the Charter guarantees of freedom of expression and association. Finally, we conclude that the procedures for deportation under the Immigration Act, when applied in accordance with the safeguards outlined in these reasons, are constitutional.\n\nApplying these conclusions in the instant case, we find that Suresh made a prima facie showing that he might be tortured on return if expelled to Sri Lanka. Accordingly, he should have been provided with the procedural safeguards necessary to protect his s. 7 right not to be expelled to torture. He was not provided the required safeguards. We therefore remand the case to the Minister for reconsideration in accordance with the procedures set out in these reasons. V. Conclusion", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-78", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 131", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appeal is allowed with costs throughout on a party and party basis. The constitutional questions are answered as follows: 1. Does s. 53(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2, offend s. 7 of the Canadian Charter of Rights and Freedoms to the extent that it does not prohibit the Minister of Citizenship and Immigration from removing a person from Canada to a country where the person may face a risk of torture? Answer: No. 2. If the answer to question 1 is in the affirmative, is s. 53(1)(b) of the Immigration Act a reasonable limit within the meaning of s. 1 of the Charter on the rights of a person who may face a risk of torture if removed to a particular country? Answer: It is not necessary to answer this question. 3. Do ss. 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the Immigration Act infringe the freedoms guaranteed under ss. 2( b ) and 2( d ) of the Charter ? Answer: Section 19(1) of the Immigration Act, as incorporated by s. 53(1), does not infringe ss. 2( b ) and 2( d ) of the Charter . 4. If the answer to question 3 is in the affirmative, are ss. 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the Immigration Act a reasonable limit on the rights of a person within the meaning of s. 1 of the Charter ? Answer: It is not necessary to answer this question. 5. Is the term “danger to the security of Canada” found in s. 53(1)(b) of the Immigration Act and/or the term “terrorism” found in s. 19(1)(e) and (f) of the Immigration Act void for vagueness and therefore contrary to the principles of fundamental justice under s. 7 of the Charter ? Answer: No. 6. If the answer to question 5 is in the affirmative, are ss. 53(1)(b) and/or s. 19(1)(e) and (f) of the Immigration Act a reasonable limit on the rights of a person within the meaning of s.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-1937-79", + "doc_type": "caselaw", + "act_code": "2002 SCC 1", + "act_short": "Suresh", + "act_name": "Suresh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1", + "marginal_note": "para 131", + "heading": "Deportation to a risk of torture; Charter s. 7 and removal on security grounds", + "part": "Supreme Court of Canada", + "division": "", + "text": "1 of the Charter ? Answer: It is not necessary to answer this question. Appeal allowed with costs.", + "current_to": "2002-01-11", + "last_amended": "", + "history": "Also reported: [2002] 1 SCR 3", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" + }, + { + "id": "scc-17759-1", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 1–2", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The writ of habeas corpus is an ancient legal remedy that remains fundamental to individual liberty and the rule of law today. Dating back to the 13th century, this writ guarantees the individual’s protection from unlawful deprivations of liberty. Entrenched in s. 10( c ) of the Canadian Charter of Rights and Freedoms , the right to habeas corpus permits those in detention to go before a provincial superior court and demand to know whether the detention is justified in law. If the relevant authority cannot provide sufficient justification, the person must be released.\n\nDespite the importance of habeas corpus, this Court has carved out two limited exceptions to its availability. First, a provincial superior court should decline jurisdiction to entertain an application for habeas corpus where a prisoner is using the application to attack the legality of their conviction or sentence, as this is properly accomplished through the ordinary appeal mechanisms set out in the Criminal Code , R.S.C. 1985, c. C-46 (see R. v. Gamble, [1988] 2 S.C.R. 595, at pp. 636-37). Second, a provincial superior court should also decline jurisdiction where the legislator has put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” (May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 40). This second exception has come to be known as the Peiroo exception (see Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253 (C.A.)).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-2", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 3–6", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In this case, Mr. Chhina applied for habeas corpus, arguing that his immigration detention had become unlawful under the Charter because of its length and uncertain duration. He also challenged his detention on the basis that he was being held in inappropriate lockdown conditions at a maximum security unit.\n\nThis Court must determine whether the Alberta Court of Queen’s Bench erred in declining its jurisdiction to entertain Mr. Chhina’s application for habeas corpus on the basis that the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA ), satisfies the second exception.\n\nThe parties do not contest that the statutory scheme set out in the IRPA provides a complete, comprehensive and expert procedure for the review of immigration matters generally. This was the conclusion reached by the Ontario Court of Appeal in Peiroo. What this case emphasizes, however, is that the determination of whether such a scheme is as broad and advantageous as habeas corpus must be considered with respect to the particular basis upon which the lawfulness of the detention is challenged.\n\nTherefore, the Peiroo exception does not bar habeas corpus applications with respect to all deprivations of liberty arising from the immigration scheme. Rather the question here is whether the IRPA provides a review procedure that is at least as broad and advantageous as habeas corpus regarding the specific challenges to the legality of the detention raised by the habeas corpus application.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-3", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 7–9", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my view, it does not. Mr. Chhina did not challenge his immigration status, deportation order or detention order as failing to respect the IRPA . Rather, he claimed that his continued detention had become unlawful because its length, conditions and uncertain duration violated his Charter rights. The IRPA does not provide for review that is at least as broad and advantageous as habeas corpus for such matters. Mr. Chhina was therefore entitled to have his application for habeas corpus heard by a judge of the Alberta Court of Queen’s Bench. II. Background\n\nThe respondent, Tusif Chhina, entered Canada under another name in December 2006 and obtained refugee status approximately two years later. In February 2012, Mr. Chhina’s refugee status was vacated and he was declared inadmissible to Canada due to both misrepresentations in his refugee application and his involvement in criminal activity. A deportation order was issued against him.\n\nFollowing time spent in criminal custody, Mr. Chhina was taken into immigration detention in April 2013. However, in light of delays in obtaining travel documents from Pakistan, Mr. Chhina was released with conditions seven months later. Mr. Chhina failed to respect his conditions and disappeared for a year, but he was eventually taken back into immigration custody in November 2015. He was detained in the Calgary Remand Centre, a maximum security unit which keeps inmates on lockdown 22 and a half hours a day. Pursuant to s. 57 of the IRPA , immigration officials reviewed Mr. Chhina’s detention on a monthly basis, each time upholding the decision that he should be detained.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-4", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 10–12", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Chhina filed his habeas corpus application in May 2016, arguing that his immigration detention had become unlawful both because it had become lengthy and indeterminate and because the conditions of his detention were “inappropriate” (Court of Queen’s Bench of Alberta Reasons, No. 160576914X1, September 2, 2016 (unreported), at p. 2). At the time of his application before the Alberta Court of Queen’s Bench, he had spent a total of 13 months in immigration detention.\n\nThe chambers judge declined jurisdiction to consider Mr. Chhina’s application for habeas corpus, citing the IRPA as a comprehensive legislative framework that would satisfy the Peiroo exception.\n\nThe Alberta Court of Appeal (2017 ABCA 248, 56 Alta. L.R. (6th) 1) reversed that decision, holding that the chambers judge should have exercised his discretion to hear Mr. Chhina’s habeas corpus application. Given the importance of the writ, the court noted that exceptions to the availability of habeas corpus must be limited and well-defined. As such, a chambers judge should decline to hear habeas corpus applications only in limited circumstances, beyond which the decision to decline jurisdiction constitutes an error of law.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-5", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 13–14", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "While acknowledging the holding in Peiroo, Greckol J.A., writing for the court, concluded that the exception does not bar habeas corpus applications in all immigration-related matters. She distinguished Mr. Chhina’s challenge noting that, unlike the applicant in Peiroo, Mr. Chhina did not contest determinations regarding his inadmissibility or deportation. Instead, he challenged the legality of his detention, incidental to those determinations, on Charter grounds. The outcome of Mr. Chhina’s habeas corpus application would have no effect on his immigration status or deportation order but, if successful, would affect his immediate liberty.\n\nThrough this lens, Greckol J.A. saw clear differences between the review and relief available via the IRPA process as compared to an application for habeas corpus, finding the latter broader and more advantageous where the challenge related to the length and indeterminate nature of the detention. As such, the Peiroo exception did not apply to Mr. Chhina’s case and the matter was remitted to the Court of Queen’s Bench for a hearing on the merits of the habeas corpus application.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-6", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 15–16", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Travel documents were subsequently obtained for Mr. Chhina and he was removed from Canada in September 2017. Thus, the arguments regarding his detention are now moot. But as Mr. Chhina’s case illustrates, habeas corpus applications are often evasive of review, as the shifting factual circumstances frequently render the application moot before appellate review can be obtained (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 14). Given the importance of clearly delineating the exceptions to habeas corpus, it is appropriate for this Court to consider the legal issues raised by Mr. Chhina’s appeal notwithstanding its mootness. No party has objected to this Court doing so. III. Issues\n\nThis appeal concerns the scope and application of the Peiroo exception, providing the Court with an opportunity to clarify when a complete, comprehensive and expert statutory scheme provides for review that is as broad and advantageous as habeas corpus such that an applicant will be precluded from bringing an application for habeas corpus.[1] IV. Analysis", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-7", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 17", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Provincial superior courts have inherent jurisdiction to hear habeas corpus applications (May, at para. 29). An application for habeas corpus requires the applicant to establish a deprivation of liberty and to raise a legitimate ground for questioning the legality of that deprivation. If this is accomplished, the onus then shifts to the authority in question to show that the deprivation of liberty is lawful. In order for detention to be lawful, the decision-maker must have authority to order detention, the decision-making process must be fair, and the decision to detain must be both reasonable and compliant with the Charter (May, at para. 77; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 72). Changes in conditions or orders leading to further deprivations of liberty may also be challenged in the same manner. Where, as here, the application is brought with certiorari in aid, the court hearing the application conducts its review on the basis of the record that resulted in the decision (J. Farbey, R. J. Sharpe and S. Atrill, The Law of Habeas Corpus (3rd ed. 2011), at p. 45; Mission Institution v. Khela, at para. 35; R. v. Miller, [1985] 2 S.C.R. 613, at p. 624).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-8", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 18–19", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The writ of habeas corpus is not a discretionary remedy; it issues as of right where the applicant successfully challenges the legality of a detention. A provincial superior court may not decline jurisdiction to hear such an application merely because alternative remedies are available (May, at paras. 34 and 44). Such a court may only decline jurisdiction where the legislator has put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” (May, at para. 40; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 65). As Mr. Chhina’s case illustrates, this analysis must be undertaken regarding the nature of the specific challenge to the legality of the detention raised in the habeas corpus application.\n\nHabeas corpus — which roughly translates to “produce the body” — was a familiar phrase in 13th century English civil procedure; it required the defendant of an action to be brought physically before the court (Farbey, Sharpe and Atrill, at p. 2). During the 15th and 16th centuries, habeas corpus took on its modern form, permitting an applicant to demand justification for their detention (at p. 4) and becoming the “great and efficacious writ in all manner of illegal confinement” (W. Blackstone, Commentaries on the Laws of England, Book III: Of Private Wrongs (2016), by T. P. Gallanis, at p. 89). Habeas corpus has never been “a static, narrow, formalistic remedy”; rather, over the centuries, it “has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty” (May, at para. 21, citing Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-9", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 20–22", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Habeas corpus continues to hold a vital and distinguished place in Canada’s modern legal landscape. Before the advent of the Charter , s. 2 of the Canadian Bill of Rights , S.C. 1960, c. 44 , established that no law of Canada would be construed or applied so as to deprive a person of a determination on the validity of their detention, and provided for release where that detention was found to be unlawful. In 1982, habeas corpus became a constitutional right entrenched in s. 10( c ) of the Charter : 10. Everyone has the right on arrest or detention . . . (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.\n\nThe review of legality under habeas corpus is broad, often protecting and interacting with other Charter rights, including: the right to life, liberty and security of the person, as guaranteed by s. 7; the right not to be arbitrarily detained or imprisoned, as guaranteed by s. 9; and the right not to be subjected to any cruel and unusual treatment or punishment, as guaranteed by s. 12.\n\nThe case of Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459, helpfully illustrates different circumstances in which a deprivation of liberty may arise, and thus, different ways in which a detention may be challenged. A deprivation of liberty may relate to (1) the initial decision requiring the detention; or to a further deprivation of liberty based on (2) a change in the conditions of the detention; or (3) the continuation of the detention.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-10", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 23–24", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "While not exhaustive, this list may be particularly helpful in pinpointing the nature of a challenge to a deprivation of liberty for reasons beyond those underlying an initial order. As I shall explore in more detail below, these three categories can assist in explaining the relevant case-law. For example, in the immigration context, a finding of inadmissibility may lead to a detention order that constitutes an initial deprivation of liberty: this is the first Dumas category (Peiroo). The transfer of prisoners from a lower to a higher security institution is emblematic of the second type of deprivation: a change in circumstances resulting in an additional deprivation of liberty (May). The third type of deprivation outlined in Dumas can speak to extended detentions or detentions of uncertain duration, which may engage ss. 7 and 9 of the Charter , as was argued here (and in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401, and Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220).\n\nRegardless of how a deprivation of liberty arises, the importance of the “great writ of liberty” underlies the general rule that exceptions to the availability of habeas corpus must be limited and carefully defined.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-11", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 25–26", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "To date, this Court has recognized only two instances where a provincial superior court may decline to hear a habeas corpus application. The first allows a provincial superior court to decline jurisdiction where a prisoner seeks to attack the legality of their conviction or sentence, determinations properly challenged through the appeal mechanisms set out in the Criminal Code (Gamble, at p. 636). The second exception arose in the field of immigration law. In Peiroo, the applicant sought issuance of a writ of habeas corpus with certiorari in aid, contesting a finding that there was no credible basis for her refugee claim and arguing that there was therefore no basis for a removal order issued against her. The Ontario Court of Appeal found that the Immigration Act, R.S.C. 1985, c. I-2, then in force established a comprehensive scheme regulating the determination and review of immigration claims in a manner that was “as broad as or broader than the traditional scope of review by way of habeas corpus with certiorari in aid” (Peiroo, at p. 261).\n\nBoth of these exceptions acknowledge the development of sophisticated procedural vehicles in our modern legal system and their ability to fully protect fundamental rights such as habeas corpus.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-12", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 27–28", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Statutory appeals in criminal matters, previously circumscribed by the common law writs of certiorari and error, were introduced some 500 years after habeas corpus (V. M. Del Buono, “The Right to Appeal in Indictable Cases: A Legislative History” (1978), 16 Alta. L.R. 446, at p. 448). Although the Court affirmed the Criminal Code exception in the context of a Charter challenge in Gamble, the rule pre-empting habeas corpus applications where a statutory appeal is available long pre-dates the Charter (see: In re Trepanier (1885), 12 S.C.R. 111; In re Sproule (1886), 12 S.C.R. 140, at p. 204; Goldhar v. The Queen, [1960] S.C.R. 431, at p. 439; Morrison v. The Queen, [1966] S.C.R. 356; Karchesky v. The Queen, [1967] S.C.R. 547, at p. 551; Korponay v. Kulik, [1980] 2 S.C.R. 265).\n\nThe IRPA , for its part, is a product of the rise of the modern administrative state: a parallel justice system established alongside the courts of law to provide accessible, expert, and expeditious adjudication of a broad spectrum of claims. For example, the decision in Pringle v. Fraser, [1972] S.C.R. 821, holding that the Immigration Act, R.S.C. 1952, c. 325, ousted provincial superior court jurisdiction to entertain a writ of certiorari, was an early recognition of the possibility that a legislature could create alternative avenues of review through administrative bodies.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-13", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 29–31", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Both of these exceptions target similar concerns, primarily the “need to restrict the growth of collateral methods of attacking convictions or other deprivations of liberty” (May, at para. 35). By affirming such statutory schemes, the standard set out in May ensures the constitutional right to habeas corpus is protected, while also realizing judicial economy, avoiding duplicative proceedings, and reducing the possibility of inconsistent decisions and forum shopping.\n\nAt issue in this appeal is the scope of the Peiroo exception and, more specifically, whether that exception precludes habeas corpus for all determinations made under immigration legislation. The appellant argues that it does, pointing to this Court’s description of the Peiroo exception in May, where we stated: “in matters of immigration law, because Parliament has put in place a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeas corpus is precluded” (May, at para. 40).\n\nIn my view, this statement was never intended to preclude habeas corpus review of every detention arising in the immigration context, whatever the nature of the challenge to the legality of the detention. I do not see May as standing for such a broad proposition. I say this for three reasons.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-14", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 32", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "First, the IRPA was not before the Court in May. In that case, a number of federal prisoners who were transferred from minimum to medium-security institutions brought habeas corpus applications to challenge this transfer to a more restrictive form of custody. The warden of the institution argued that the Corrections and Conditional Release Act , S.C. 1992, c. 20 (CCRA ), set out a comprehensive statutory scheme that provided effective remedies comparable to habeas corpus — a proposition this Court did not accept. In that context, the Court compared the CCRA not to the IRPA (although it was then in force), but rather to the Immigration Act considered in Peiroo. The Court concluded that, unlike the immigration scheme, the corrections statute did not guarantee impartial review, articulate specific and effective remedies, or even provide clear grounds upon which transfer decisions could be reviewed (May, at para. 62).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-15", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 33–34", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, the jurisprudence relied on by the Court in May — Peiroo, Pringle, and Reza v. Canada, [1994] 2 S.C.R. 394, — did not stand for the broad proposition that habeas corpus will never be available where the detention is related to immigration matters. May must be understood in light of the cases cited; the Court did not purport to extend their holdings. Neither Pringle nor Reza dealt specifically with habeas corpus. Pringle was concerned with certiorari, a writ which, unlike habeas corpus, is not constitutionally protected. Reza did not involve an application for habeas corpus, but a challenge to the constitutionality of the Immigration Act on other grounds. Even Peiroo did not provide that habeas corpus could never lie in the immigration context. It simply determined that the Immigration Act then in force was “as broad as or broader” than habeas corpus for “immigration matters” like Ms. Peiroo’s claim. Ms. Peiroo had argued that the adjudicator erred in finding she had no credible basis for her refugee claim and that her detention was therefore ordered illegally.\n\nFinally, May itself urges us to interpret exceptions to the availability of habeas corpus restrictively: Given the historical importance of habeas corpus in the protection of various liberty interests, jurisprudential developments limiting habeas corpus jurisdiction should be carefully evaluated and should not be allowed to expand unchecked. The exceptions to habeas corpus jurisdiction and the circumstances under which a superior court may decline jurisdiction should be well defined and limited. [para. 50]", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-16", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 35–37", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "For these reasons, I do not think May should be interpreted as holding that the Peiroo exception bars all habeas corpus applications that arise in the immigration context, regardless of the grounds raised to challenge detention.\n\nTwo recent Ontario Court of Appeal cases — Chaudhary and Ogiamien — recognized that the Peiroo exception does not bar all habeas corpus applications targeting a deprivation of liberty that arises from the immigration scheme.\n\nIn Chaudhary, Rouleau J.A., writing for the court, distinguished the case before him from Peiroo by noting that the applicant in Peiroo had challenged aspects of her refugee status itself — an immigration determination for which the IRPA provided review as broad as habeas corpus — whereas the multiple applicants in Chaudhary challenged their detentions on the grounds that the extended duration or indeterminacy of detention offended s. 7 of the Charter . The Court of Appeal concluded that the IRPA was not as broad or advantageous as habeas corpus with respect to such queries. Moreover, the applicants challenged only their detention: the outcome of the applications would have no effect on their immigration status. Ultimately, provincial superior court jurisdiction was a necessary complement to the statutory scheme in order to protect the constitutional right to habeas corpus.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-17", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 38–40", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Sharpe J.A. addressed similar facts in Ogiamien, finding that a 25-month detention — on the basis of an outstanding deportation order — was subject to habeas corpus review. Although the court found it was unnecessary to consider Mr. Ogiamien’s contention that he should have been detained in an immigration holding centre rather than in a maximum security facility — given that specific complaint had been dealt with in a separate application — it noted that the principle applied in Chaudhary was not restricted to situations involving lengthy detentions of uncertain duration. Instead, the principle rested upon the Superior Court’s broad residual jurisdiction to entertain habeas corpus applications subject only to the framework set out in May (Ogiamien, at paras. 38-42).\n\nI agree with the Chaudhary and Ogiamien approach, adopted by the Court of Appeal in this case. This approach properly flows from the principles set out by this Court in May.\n\nIn sum, the Peiroo exception can be more clearly articulated as follows: an application for habeas corpus will be precluded only when a complete, comprehensive and expert scheme provides for review that is at least as broad and advantageous as habeas corpus with respect to the challenges raised by the habeas corpus application. An administrative scheme may be sufficient to safeguard the interests protected by habeas corpus with respect to some types of challenges, but may also need to be re-examined with respect to others. It is thus essential to consider how the challenge to the unlawful detention is framed in the habeas corpus application. A. Determining When the Exception Applies", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-18", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 41–42", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "How, then, does a court determine whether there is “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” such that an applicant will be precluded from bringing an application for habeas corpus (May, at para. 40)?\n\nFirst, it is necessary to ask upon what basis the legality of the detention is being challenged. In other words, what are the grounds in the applicant’s habeas corpus application? Reference to the categories in Dumas may be helpful to this inquiry. Is the applicant challenging an initial decision that resulted in detention, such as a removal order? Are they challenging the conditions of their detention? Or are they challenging the length and uncertain duration of their detention? Precisely delineating the grounds for the habeas corpus application is necessary in order to determine whether there is an effective statutory remedy to address those grounds.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-19", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 43–44", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Second, it is necessary to ask whether there is a complete, comprehensive and expert scheme that is as broad and advantageous as habeas corpus in relation to the specific grounds in the habeas corpus application. Elements of the IRPA detention review scheme may speak to whether the scheme is complete, comprehensive and expert. However, the main issue in this case, and the focus of the parties’ submissions, is whether IRPA review is as broad and advantageous as habeas corpus with respect to the specific basis upon which Mr. Chhina challenged the legality of his detention. In this inquiry, it may be helpful to look at whether a statutory scheme fails entirely to include the grounds set out in the application for habeas corpus. If so, the scheme will not be as broad and advantageous as habeas corpus. The scheme will also fail to oust habeas corpus if it provides for review on the grounds in the application, but the review process is not as broad and advantageous as that available through habeas corpus, considering both the nature of the process and any advantages each procedural vehicle may offer.\n\nAs I shall explain, applying this framework to the facts of Mr. Chhina’s case reveals that while the statutory scheme set out in the IRPA , including judicial review, may provide adequate review with respect to some matters, it is unable to effectively address the challenge raised by Mr. Chhina’s application in a manner that is as broad and advantageous as habeas corpus. B. Identifying the Grounds of Mr. Chhina’s Challenge", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-20", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 45–47", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The first step is to identify the grounds raised in the habeas corpus application. Mr. Chhina challenged the legality of his detention on two grounds: that he was being held in inappropriate conditions and that the duration of his detention had become indeterminate and overly lengthy. Mr. Chhina argued that the length and duration of his detention violated his rights under ss. 7 and 9 of the Charter because there was no reasonable prospect that the immigration-related purposes justifying his detention would be achieved within a reasonable time. The courts below proceeded on the basis of this second ground: that the lengthy detention of indeterminate duration violated the Charter .\n\nUnlike in Peiroo, Mr. Chhina’s application for habeas corpus had nothing to do with whether his inadmissibility or deportation were rightly or wrongly decided. C. The IRPA Statutory Review Scheme\n\nIn determining whether the scheme provides for review as broad and advantageous as habeas corpus, the court should look at the actual alternatives for detention review realistically available to someone in Mr. Chhina’s circumstances. As this Court stated in May, a “purposive approach . . . requires that we look at the entire context”, which in that case included the relative disadvantages of judicial review in the Federal Court (May, at para. 65). This examination may include any administrative adjudicators, tribunals, and internal appeal mechanisms, as well as available judicial review or statutory appeal routes. In this case, I consider both the Immigration Division and the judicial review processes in the Federal Courts.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-21", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 48–49", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "I begin first with a general overview of how the IRPA scheme functions before considering whether it offers review as broad and advantageous as habeas corpus. The IRPA provides a detailed scheme to deal with the review of detention in the immigration context. Just as in the criminal context, a deprivation of liberty ordered pursuant to the IRPA must always be justified. Release is the default except where the Minister establishes that: the detainee is a danger to the public or is unlikely to appear at a hearing; the Minister is inquiring as to inadmissibility due to security risks, human rights violations or criminality; or the Minister has concerns about establishing the person’s identity (IRPA , s. 58(1) ). Each of these grounds of detention is determined in accordance with a list of immigration-specific factors set out in the Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 244 to 249 (IRPR).\n\nOnce an initial detention order has been made, the IRPA review process provides for periodic internal review of detention by members of the Immigration Division of the Immigration and Refugee Board, who are appointed in accordance with the Public Service Employment Act, S.C. 2003, c. 22 (IRPA , ss. 151 and 172(2) ). A member of the Immigration Division must conduct an initial review within 48 hours of an individual being taken into immigration custody, as well as a review within the 7 following days, and additional reviews every 30 days thereafter (IRPA , s. 57 ).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-22", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 50–54", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The IRPA also explicitly provides for judicial review of those decisions by the Federal Court (IRPA , s. 72 ). An appeal from this judicial review is available to the Federal Court of Appeal on a certified question of general importance (IRPA , s. 74 (d)). All the review processes are intimately linked, as judicial review is circumscribed by the statutory mandate of the original decision-maker.\n\nLastly, it should be noted that immigration officials are experts in applying their statutory mandate. Given its role in judicial review, the Federal Court has also developed significant familiarity with the immigration context and contributes an additional layer of immigration-related expertise.\n\nAs this examination reveals, the review process set out in the IRPA is detailed and clear. The grounds for ordering or continuing detention are clear. Independent review is assured by judicial review through the Federal Courts. Clear remedies, namely release, exist.\n\nHowever, as I shall explain, IRPA proceedings do not provide for review as broad and advantageous as habeas corpus with respect to the specific basis upon which Mr. Chhina has challenged the legality of his detention. D. Is Review Under the IRPA as Broad and Advantageous as Habeas Corpus?\n\nThe scope of review under the IRPA must, of course, actually include the grounds Mr. Chhina has raised.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-23", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 55–56", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Once the Minister has established grounds for detention, immigration officers and members of the Immigration Division must consider factors which may weigh in favour of release, set out at s. 248 of the IRPR: (a) the reason for detention; (b) the length of time in detention; (c) whether . . . that detention is likely to continue and, if so, [how long]; (d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned; and (e) the existence of alternatives to detention.\n\nTo this list, the Federal Court of Appeal has added that the decision-maker must be mindful of the principles applicable to s. 7 of the Charter (Canada (Minister of Citizenship & Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572, at para. 14).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-24", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 57–58", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Chhina challenged the length, uncertain duration and conditions of his detention. The conditions in which a person is detained are notably absent from the language of s. 248 of the IRPR. Counsel for the appellant conceded as much, adding that the conditions of detention are properly within the ambit of the provincial correctional authorities or the Canadian Border Services Agency, not the Immigration Division (Brown v. Canada (Citizenship and Immigration), 2017 FC 710, 25 Admin. L.R. (6th) 191, at para. 138). The Immigration Division has no explicit power to examine harsh or illegal conditions. This is to be contrasted with habeas corpus, which provides for review of any unlawful form of detention. The inability of a scheme to respond to the specific ground raised in an application of habeas corpus would mean that the scheme does not preclude habeas corpus. However, this ground of Mr. Chhina’s habeas corpus application was not addressed by the Court of Appeal, nor was it argued before this Court.\n\nIn contrast to the absence of conditions, the regulations do provide for consideration of the length and likely duration of detention (IRPR, s. 248(c) and (d)). The question thus becomes whether review of the length and duration of detention under the IRPA is as broad and advantageous as that available through habeas corpus. This requires consideration of the nature of the review process and any advantages provided by each procedural vehicle.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-25", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 59", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "I conclude that the IRPA does not provide for review as broad and advantageous as habeas corpus where the applicant alleges their immigration detention is unlawful on the grounds that it is lengthy and of uncertain duration. Taken as a whole, the scheme falls short in at least three important ways. First, the onus in detention review under the IRPA is less advantageous to detainees than in habeas corpus proceedings. Second, the scope of review before the Federal Courts is narrower than that of a provincial superior court’s consideration of a habeas corpus application. Third, habeas corpus provides a more timely remedy than that afforded by judicial review.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-26", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 60", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Under the IRPA, the Minister need only make out a prima facie case for continued detention (e.g., indicate that the detainee is a continued flight risk) in order to shift the onus to the detainee to justify release. While the IRPA places the onus on the Minister to demonstrate a ground for detention (IRPA , s. 58 ), the regulations simply state that the length and likely duration of detention (among other factors) “shall be considered before a decision is made on detention or release” (IRPR, s. 248). The Federal Court has interpreted the regulations as imposing the onus on the detainees to demonstrate that their continued detention would be unlawful in light of the s. 248 factors (Thanabalasingham, at para. 16; Chaudhary, at para. 86; Canada (Public Safety and Emergency Preparedness) v. Lunyamila, 2016 FC 1199, [2017] 3 F.C.R. 428). This understanding of who bears the onus is consistent with the general principle that a Charter applicant bears the onus of establishing a Charter infringement. In addition, while s. 248 provides that an Immigration Division member must consider certain factors, the regulations provide no guidance as to how the length and duration of detention are to be considered and, crucially, when these factors might be outweighed by others — such as the reason for detention. Thus, as Rouleau J.A. has correctly observed, the IRPA does not require the Minister to explain or justify the length and uncertain duration of a detention, because the Minister need only establish one of the grounds at s. 58 of the scheme in order to shift the onus to the detainee (Chaudhary, at para. 86). This contrasts sharply with habeas corpus where, subject to raising a legitimate ground, the onus is on the Minister to justify the legality of the detention in any respect.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-27", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 60–62", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "As noted by this Court in Mission Institution v. Khela, the onus in habeas corpus is of particular historical significance: This particular shift in onus is unique to the writ of habeas corpus. Shifting the legal burden on the detaining authorities is compatible with the very foundation of the law of habeas corpus, namely that a deprivation of liberty is permissible only if the party effecting the deprivation can demonstrate that it is justified. [para. 40]\n\nFurther, on judicial review to the Federal Court, the onus lies squarely upon the applicant to establish that the decision is unreasonable (Mission Institution v. Khela, at para. 40).\n\nMoreover, under the IRPA the Minister may satisfy its onus by relying on reasons given at a prior detention hearing. This practice has been encouraged by the Federal Courts, which have held that, while previous detention decisions are not binding, “if a member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out” (Thanabalasingham, at para. 10; see also, among others: Canada (Public Safety and Emergency Preparedness) v. Mehmedovic, 2018 FC 729, at para. 19 (CanLII); Canada (Public Safety and Emergency Preparedness) v. Torres, 2017 FC 918, at para. 20 (CanLII); Canada (Minister of Public Safety and Emergency Preparedness) v. Karimi-Arshad, 2010 FC 964, 373 F.T.R. 292, at para. 16). In other words, immigration officials may rely entirely on reasons given by previous officials to order continued detention and remain fully compliant with the IRPA scheme. In practice, the periodic reviews mandated by the IRPA are susceptible to self-referential reasoning, instead of constituting a fresh and independent look at a detainee’s circumstances.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-28", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 63", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Thus, the scheme fails to provide the detainee with the fresh and focussed review provided by habeas corpus, where the Minister bears the onus. The fresh evidence filed before this Court emphasizes the above points. An external audit commissioned by the chair of the Immigration and Refugee Board offers a timely, and frankly unfortunate, picture of how the scheme is being administered for those in long-term detention. The 2018 audit highlights how, in practice, detainees do not receive the full benefit of the scheme: - in principle, the Immigration Division should place the onus on the Minister to continue detention; in practice they often fail to do so (2017/2018, Audit, at p. 18); - in principle, the Immigration Division should be approaching each detention review afresh; in practice, the Immigration Division is overly reliant on past detention review decisions (2017/2018, Audit, pp. 31-32); - in principle, the Immigration Division should be impartial and independent from the Canadian Border Services Agency; in practice, the Immigration Division often overly relies on the Canada Border Services Agency’s submissions (2017/2018, Audit, pp. 17-18); and - in principle, the Immigration Division should be reviewing IRPA detentions for compliance with ss. 7 , 9 , and 12 of the Charter ; in practice, as a result of their failure to consider each detention review afresh, they do not do so (2017/2018, Audit, pp. 31-32).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-29", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 64", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The second disadvantage of the IRPA scheme is the scope of review. As a practical matter, the Immigration Division does not conduct a fresh review of each periodic detention, as discussed above; as such, the scope of review before the Federal Courts is correspondingly narrower than review on habeas corpus. The broad review provided by habeas corpus grapples with detention as a whole. This case, for example, required a holistic consideration of Mr. Chhina’s Charter rights and how they may have been violated — not by an individual decision but by the overall context of his detention. This type of inquiry is closely tied to the expertise of the provincial superior courts (May, at para. 68; see also Mission Institution v. Khela, at para. 45; Chaudhary, at para. 102). Relief through judicial review on the other hand, may be sought only with respect to a single decision, which in the IRPA context is generally the most recent 30-day review (Federal Courts Rules, SOR/98-106, r. 302).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-30", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 65", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Further, the remedies available on judicial review are more limited and less advantageous to a detainee than on habeas corpus. Although the Federal Courts do have limited powers of mandamus — the power to require a decision-maker to take positive action, such as requiring the Immigration Division to release a detainee — I am aware of no cases in which release has been ordered. To the extent that they can exercise this power, the remedy is granted only where “certain relatively rarely occurring prerequisites are met” (Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132, at para. 28 (CanLII)). Instead, a successful judicial review will generally result in an order for redetermination, requiring further hearings to obtain release and thereby extending detention. This is to be contrasted with habeas corpus, where release is ordered immediately once the relevant authority has failed to justify the deprivation of liberty.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-31", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 66", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Lastly, habeas corpus provides a more timely remedy than those available through the IRPA . Leave is required for judicial review of a detention decision made under the IRPA , and perfecting an application for leave on judicial review can take up to 85 days (IRPA , s. 72(2) (b); Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, rr. 10(1), 11 and 13). As the Federal Court has acknowledged, even in the best of circumstances, it is thus impracticable for judicial review to occur before the next 30-day detention review has been held, rendering the outcome of the judicial review moot (Canada (Citizenship and Immigration) v. B386, 2011 FC 175, [2012] 4 F.C.R. 220, at para. 13; Chaudhary, at para. 94). The remedy of a rehearing restarts the review process, leading to further delays. This cycle of mootness at the judicial review stage acts as a barrier to timely and effective relief.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-32", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 67–69", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In contrast, the importance of habeas corpus as a “swift and imperative remedy” has long been recognized (Mission Institution v. Khela, at para. 3; In re Storgoff, [1945] S.C.R. 526, at p. 591). Courts across the country have acknowledged this by enacting rules that prioritize the hearing of habeas corpus applications. Habeas corpus writs are “returnable immediately” before a superior court judge in Ontario, and the hearing of habeas corpus applications have priority over other business of the court in both Quebec and Nova Scotia (Habeas Corpus Act, R.S.O. 1990, c. H.1, s. 1(1); Code of Civil Procedure, CQLR, c. C-25.01, art. 82 para. 3; Nova Scotia Civil Procedure Rules, r. 7.13(1); see also Criminal Procedure Rules of the Supreme Court of the Northwest Territories, Canada Gazette, SI/98-78, ss. 103 to 107). The advantages habeas corpus offers with respect to timeliness are especially relevant to an application like Mr. Chhina’s, which was primarily concerned with the duration of his detention.\n\nIn sum, the IRPA fails to provide relief that is as broad and advantageous as habeas corpus in response to Mr. Chhina’s challenge to the legality of the length and uncertain duration of his detention. V. Motion to Vary the Record\n\nOn appeal before this Court, the respondent brought a motion to vary the record and file new evidence. This new evidence included a troubling audit that found examples of maladministration within the IRPA scheme, resulting in some detainees being kept in a cycle of long-term detention.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-33", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 70", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "While the evidence was not necessary to resolve this appeal, it is admissible pursuant to Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775. The evidence is new, relevant, credible and confirmatory in that it provides statistical evidence supporting the argument that the IRPA scheme is not as broad and advantageous as habeas corpus for lengthy detentions, particularly with regards to the onus borne by the applicant at each successive detention review. In this case, even without regard to this evidence, it was clear that the statutory scheme, including judicial review at the Federal Courts, is not as advantageous as habeas corpus given the nature of the challenge. VI. Conclusion", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-34", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 71", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Habeas corpus is a fundamental and historic remedy which allows individuals to seek a determination as to the legality of their detention. A provincial superior court should decline its habeas corpus jurisdiction only when faced with a complete, comprehensive and expert scheme which provides review that is at least as broad and advantageous as habeas corpus with respect to the grounds raised by the applicant. Although our legal system continues to evolve, habeas corpus “remains as fundamental to our modern conception of liberty as it was in the days of King John” and any exceptions to its availability must be carefully limited (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 28). The IRPA has been held to be a complete, comprehensive and expert scheme for immigration matters generally, but it is unable to respond to Mr. Chhina’s challenge in a manner that is as broad and advantageous as habeas corpus and the Alberta Court of Queen’s Bench erred in declining to hear Mr. Chhina’s habeas corpus application. For these reasons, I would allow the motion to adduce new evidence and dismiss the appeal with costs on the basis agreed by the parties. The following are the reasons delivered by", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-35", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 72–73", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Abella J. (dissenting) — I share the majority’s view that there should be assertive and rigorous scrutiny of the lawfulness of any deprivation of liberty. That is why, in my respectful view, the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA ), should be interpreted in a way that guarantees the fullest possible range of scrutiny for detention, including the conditions of detention. I see nothing in the language of the Act that precludes such a comprehensive review. In fact, I think the basis for the entire scheme requires it. On the other hand, interpreting it in a way that restricts the contours of the scrutiny unduly interferes with the rights of the detainee and with the legislature’s intention that those rights be fully and generously integrated with the purposes of the whole scheme.\n\nMoreover, interpreting the Act in a way that excludes the possibility of reviewing all aspects of immigration detention, including its conditions and lawfulness, essentially and inappropriately reads out the detention review process in IRPA . Why would any detainee settle for a partial review of his or her detention under IRPA if they could receive a more expansive one under habeas corpus? By narrowing the range of detention review available under IRPA , the majority’s interpretation has the effect of elevating habeas corpus into the only meaningful route offering detainees a full review of their detention. This relegates the Act to a second-best role, and creates a two-tier process of detention review whereby those who choose the Act’s menu are deemed to be consigned to a lesser remedial buffet.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-36", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 74–77", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The better approach is to continue to read the language of IRPA in a manner that is as broad and advantageous as habeas corpus and ensures the complete, comprehensive and expert review of immigration detention that it was intended to provide, as all of this Court’s previous jurisprudence has done. It is far more consistent with the purposes of the scheme to breathe the fullest possible remedial life into the Act than to essentially invite detainees to avoid the exclusive scheme and pursue their analogous remedies elsewhere. I. Background\n\nTusif Ur Rehman Chhina was born in Pakistan. He entered Canada in December 2006 and obtained refugee status under a false name. When the Minister of Citizenship and Immigration discovered Mr. Chhina’s misrepresentation, he applied to the Refugee Protection Division of the Immigration and Refugee Board to remove Mr. Chhina’s refugee status.\n\nThe Refugee Protection Division granted the Minister’s application in February 2012. It determined that Mr. Chhina was inadmissible to Canada on the basis of serious criminality, and issued a deportation order against him. In response to the deportation order, the Canadian Border Services Agency began taking steps to obtain the necessary travel documents for Mr. Chhina’s return to Pakistan.\n\nBefore he could be deported from Canada, Mr. Chhina was convicted of various criminal offences and incarcerated for three years. When he was released in April 2013, Mr. Chhina was taken immediately into immigration detention on the grounds that he would likely pose a danger to the public and would be unlikely to appear for his removal from Canada if released.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-37", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 78–79", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "As required by the Act, a member of the Immigration Division of the Immigration and Refugee Board reviewed Mr. Chhina’s detention within 48 hours of this detention and again within 7 days. Thereafter, the Immigration Division reviewed his detention at least every 30 days. His release was ordered on terms and conditions by Leeann King after a detention review in November 2013. Member King explained: [I]t will be an indeterminate amount of time before Pakistan issues a travel document if they even ever do because there’s no way to know what the holdup is at this point after full cooperation from Mr. Chhina and his family . . . . So what I have to consider is the Regulations under 248 which are borrowed verbatim from the decision of Sahin which relates to section 7 of the Charter and detaining people for lengthy and indeterminate amounts of time when there are alternatives to look at, alternatives to detention that could reduce the risks posed. (A.R., vol. II, at p. 106)\n\nMr. Chhina breached the conditions of his release by failing to report to the Canadian Border Services Agency as required. Border Services issued a warrant for his arrest in December 2013, but Mr. Chhina could not be located for a year. He was finally arrested by the police in December 2014 for crimes committed since his release. He was detained on those criminal charges until November 2015, at which point he was again taken directly into immigration detention.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-38", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 80–82", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Immigration Division reviewed his detention the next day and ordered his continued detention on the bases that he was unlikely to appear for removal from Canada and that he posed a danger to the public. The Immigration Division continued to review Mr. Chhina’s detention as required by ss. 57 and 58 of IRPA and s. 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), which guarantee immigration detainees like Mr. Chhina an opportunity to challenge the lawfulness of their detention before the Immigration Division at least every 30 days.\n\nBorder Services continued its efforts to return Mr. Chhina to Pakistan. It requested travel documents from Pakistan on three occasions over three and one half years. Pakistan did not accede to these requests. While Pakistan had at one time acknowledged that Mr. Chhina was a Pakistani citizen, it subsequently resiled from that position and said it would not issue a travel document because it could not verify Mr. Chhina’s national status. Border Services learned that Pakistan refused to issue a travel document in December 2015 and then made efforts to establish his true identity.\n\nMr. Chhina pursued the statutory remedies available to him to challenge the lawfulness of his continued detention under IRPA . But he also sought to access the alternative remedy of habeas corpus by emphasizing the constitutional nature of his challenge based on ss. 7 , 9 and 12 of the Canadian Charter of Rights and Freedoms .", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-39", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 83–85", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The application judge in the Court of Queen’s Bench, Mahoney J., declined to exercise habeas corpus jurisdiction on the basis that the IRPA scheme for immigration detention review provides a complete, comprehensive and expert procedure for the review of Immigration Division decisions. He found that the case was an immigration matter within the jurisdiction and expertise of the Federal Court.\n\nThe Alberta Court of Appeal held that the application judge erred in declining to exercise habeas corpus jurisdiction. In its view, habeas corpus review offers greater advantages to detainees like Mr. Chhina than the IRPA scheme.\n\nThe Alberta Court of Appeal’s decision, which followed and endorsed the Court of Appeal for Ontario’s decision in Chaudhary v. Canada (Minister of Public Safety & Emergency Preparedness) (2015), 127 O.R. (3d) 401 (C.A.), departed from settled law. This Court has repeatedly held that the IRPA scheme for the review of immigration detention decisions is a complete, comprehensive and expert scheme that is at least as broad as, and no less advantageous than, review by way of habeas corpus. I see no reason to depart from it now. If anything, this case presents an opportunity to confirm that the process and substance of detention reviews under IRPA should be as advantageous as habeas corpus, so that detainees get expeditious access to the fullest possible review of the terms and conditions of their detention. II. Analysis", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-40", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 86–88", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Habeas corpus, the traditional route to assessing the lawfulness of deprivations of liberty, has historic roots which have spawned a variety of statutory remedies whose goal is to preserve the same protections. These can be found, among other statutes, in the Criminal Code , R.S.C. 1985, c. C-46 , which confers jurisdiction on appellate courts to correct the errors of a lower court and release the applicant (see, for example, R. v. Gamble, [1988] 2 S.C.R. 595, at pp. 636-37; R. v. Pearson, [1992] 3 S.C.R. 665 (bail review); Staetter v. British Columbia (Adult Forensic Psychiatric Services), 2017 BCCA 68 (Review Board custodial dispositions)).\n\nThey are also found in IRPA . Their legitimacy as a genuine alternative to habeas corpus was judicially considered and endorsed in Pringle v. Fraser, [1972] S.C.R. 821; Peiroo v. Canada (Minister of Employment & Immigration) (1989), 69 O.R. (2d) 253 (C.A.), leave to appeal refused, [1989] 2 S.C.R. x; Reza v. Canada, [1994] 2 S.C.R. 394; May v. Ferndale Institution, [2005] 3 S.C.R. 809. Each of these decisions emphasized that the habeas corpus-like remedies available in what was intended to be an exclusive statutory scheme, were “as broad as or broader than the traditional scope of review by way of habeas corpus” (Peiroo, at p. 261).\n\nThe issue in this appeal is whether that remains the case, namely, that the immigration scheme is able to continue to provide as fulsome a package of protections as does habeas corpus, or whether the scheme no longer provides analogous benefits, thereby justifying a departure from our jurisprudence.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-41", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 89–91", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Statutory schemes like IRPA that replace habeas corpus with equally effective remedies have long been upheld (Judith Farbey and Robert J. Sharpe, with Simon Atrill, The Law of Habeas Corpus (3rd ed. 2011), at p. 49). As the Court of Appeal for Ontario recently observed in Ogiamien v. Ontario (Community Safety and Correctional Services) (2017), 55 Imm. L.R. (4th) 220 (Ont. C.A.), habeas corpus cannot be used to mount a collateral attack on immigration decisions for which a comprehensive review process exists (para. 14).\n\nThe statutory scheme for immigration detention review set out in IRPA , together with the Regulations and the Immigration Division Rules, SOR/2002-229, mandates prompt, regular, accessible and Charter-compliant review of immigration detention decisions by the Immigration Division of the Immigration and Refugee Board, an independent, quasi-judicial administrative tribunal with specialized knowledge of immigration matters, including immigration detention.\n\nThe IRPA scheme was intended to provide the same fulsome, Charter-compliant review of immigration detention as habeas corpus. Section 3(3) (d) of IRPA codifies the Immigration Division members’ obligation to exercise their discretion in accordance with the Charter ; Application (3) This Act is to be construed and applied in a manner that . . . (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms , including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-42", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 92–93", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "This means that the Charter governs the exercise of discretion under the Act and informs the interpretation of its provisions in a manner that allows for the fullest possible review of a detainee’s loss of liberty. The Act must therefore be interpreted in a way that does not circumscribe its purposes but instead gives it the widest possible scope for implementing its objectives through rigorous substantive detention review. The application of the Charter to the IRPA scheme guarantees the full panoply of rights to detained individuals. This extends to matters of timeliness and access to the statutory remedies, the nature of the review, onus and expertise.\n\nThe suggestion that a full review of detention can only occur under habeas corpus is a bow to the seductive attraction of the label without recognizing that it unnecessarily fetters the comprehensive review of the lawfulness of detention provided in the Act. It also departs from a long-standing jurisprudential consensus: that the IRPA scheme for the review of immigration detention decisions provides a remedy to detainees that is at least as broad, and no less advantageous than review by way of habeas corpus. In my respectful view, there is no principled reason to abandon the sound logic in Pringle, Peiroo, Reza and May.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-43", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 94–95", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "At the time Pringle was decided in 1972, the Immigration Appeal Board Act, S.C. 1966-67, c. 90, had recently been amended to provide a scheme for the review of deportation orders by the Immigration Appeal Board, an independent administrative tribunal vested with all the powers of a superior court of record. The applicant appealed to the Board after an immigration official issued a deportation order against him. At the same time, he commenced certiorari proceedings in the superior court to have the deportation order quashed. His application for certiorari was dismissed at first instance but granted on appeal to the Court of Appeal for Ontario. Before this Court, the appeal turned on whether the superior court had certiorari jurisdiction to quash a deportation order made pursuant to the Immigration Act, R.S.C. 1952, c. 325.\n\nLaskin J. concluded that amendments to the Immigration Appeal Board Act establishing the Immigration Appeal Board and conferring certain power to it had “brought into the law a wider avenue for initial appeal from deportation orders than theretofore existed” (p. 825). He wrote: [The Immigration Appeal Board Act] and the Immigration Act, and the Regulations promulgated under each of them, constitute a code for the administration of immigration matters and for the review of proceedings in such matters. There is no common law of immigration. Parliament’s authority to establish such a code is not challenged; nor is Parliament’s authority to deny or remove certiorari jurisdiction from provincial superior courts over deportation orders. [p. 825]", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-44", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 96", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Laskin J. held that the amended Immigration Appeal Board Act, with its new scheme for the administrative review of immigration deportation orders, ousted the certiorari jurisdiction of the superior court. He rejected the contention that Parliament, in enacting the new immigration scheme, had not clearly expressed an intention that the scheme should remove certiorari jurisdiction from the provincial superior courts. On the contrary, he saw s. 22 of the scheme as expressly endowing the Immigration Appeal Board with “sole and exclusive jurisdiction to hear and determine all questions of fact or law, including questions of jurisdiction”. In Laskin J.’s view, the plain meaning of the statute was to exclude any other court or tribunal from entertaining the same proceedings: The result I would reach goes beyond literal justification in the language of s. 22. The facts of the present case show the incompatibility of the appellate jurisdiction vested in the Board with the survival of certiorari in provincial superior courts. It was not suggested that the appeal to the Board would be aborted by proceedings to quash taken in the Supreme Court of Ontario. In fact, Fraser did not abandon his appeal upon taking certiorari proceedings. However, I do not propose to deal with this case as if an election of remedies had been made and that this must determine the outcome. Certainly, the likelihood of two conflicting decisions (each ultimately appealable to this Court) has nothing to commend it. The only practical resolution is to recognize the exclusiveness of the special procedure ordained by Parliament. [p. 827]", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-45", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 97–99", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Laskin J. compared certiorari to habeas corpus, holding that both are remedial proceedings whose “availability may depend on whether [they are] prescribed as a remedy by the competent legislature” (p. 826, citing In re Storgoff, [1945] S.C.R. 526). These remedies have “no necessary ongoing life in relation to all matters for which [they] could be used, if competent excluding legislation is enacted” (pp. 826-27).\n\nThe principles articulated in Pringle were adopted in Peiroo. In Peiroo, the applicant made a refugee claim in Canada. The Convention Refugee Determination Division of the Immigration and Refugee Board determined there was no credible basis to her claim and issued a removal order pursuant to the provisions of what was then the Immigration Act, R.S.C. 1985, c. I-2. Ms. Peiroo was placed in immigration detention. She sought to contest the finding of no credible basis and the removal order by applying to the provincial superior court for habeas corpus with certiorari in aid. Her application was dismissed and she appealed to the Court of Appeal for Ontario.\n\nThe Court of Appeal considered whether it should decline to exercise its habeas corpus jurisdiction to review Ms. Peiroo’s detention in favour of the alternative remedies available to her to challenge the impugned immigration decisions. Catzman J.A., writing for the court, noted that habeas corpus is an extraordinary remedy that does not generally lie where there is an alternative remedy available (see Peiroo, at p. 257, citing Cameron Harvey, The Law of Habeas Corpus in Canada (1974), at p. 13; Roger Salhany, Canadian Criminal Procedure (4th ed. 1984), at p. 521).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-46", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 100", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Catzman J.A. compared habeas corpus with the available remedies under the Immigration Act to challenge removal orders and credible basis findings. The Act expressly provided for an appeal with leave to the Federal Court of Canada. Catzman J.A. observed that the grounds and scope of review set out in the appeal provisions of the Federal Court Act , R.S.C. 1985, c. F-7 , “are as broad as, and — in the power to examine erroneous findings of fact — probably broader than, those on which the [superior court] exercises its jurisdiction on applications for habeas corpus with certiorari in aid” (p. 258).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-47", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 101", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Catzman J.A. concluded that the review and appeal mechanisms contemplated in the Act were “as broad as or broader than the traditional scope of review by way of habeas corpus”. As a result, the statutory scheme did not run afoul of the principle that individuals “should not be refused the ancient remedy of habeas corpus on account of the availability of some less expeditious and advantageous alternative remedy” (p. 258, citing R. v. Governor of Pentonville Prison, ex parte Azam, [1973] 2 All E.R. 741 (C.A.), at p. 758, aff’d [1973] 2 All E.R. 765 (H.L.)). He explained: Parliament has established in the [Immigration Act], particularly in the recent amendments which specifically address the disposition of claims of persons in the position of the appellant, a comprehensive scheme to regulate the determination of such claims and to provide for review and appeal in the Federal Court of Canada of decisions and orders made under the Act, the ambit of which review and appeal is as broad as or broader than the traditional scope of review by way of habeas corpus with certiorari in aid. In the absence of any showing that the available review and appeal process established by Parliament is inappropriate or less advantageous than the habeas corpus jurisdiction of the [provincial superior court], it is my view that this court should, in the exercise of its discretion, decline to grant relief upon the application for habeas corpus in the present case, which clearly falls within the purview of that statutory review and appeal process.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-48", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 101–102", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "I am fortified in this conclusion by the observation that similar considerations appear to have moved the Supreme Court of Canada to hold that where there is a legislative initiative purporting to provide a whole scheme or code for the administration and review of proceedings in a field like immigration (Pringle v. Fraser . . . [1972] S.C.R. 821), or human rights (Board of Governors of Seneca College of Applied Arts & Technology v. Bhadauria . . . [1981] 2 S.C.R. 181 . . .), such a scheme should not be by-passed, either by evolving a new cause of action (as in Bhadauria) or by the use of a prerogative writ (as in Pringle). Both jurisprudence and logic would suggest that this Court should leave the review of immigration matters with the Federal Court of Canada, which has review and appeal jurisdiction with respect to many aspects of immigration law and which has geographical jurisdiction throughout Canada, and thus can deal with claims of refugee claimants wherever their point of entry. [pp. 261-62]\n\nThis became known as “the Peiroo exception”, namely, where Parliament has put in place a complete, comprehensive and expert statutory scheme providing for review of detention that is at least as broad as, and no less advantageous than habeas corpus review, superior courts should decline to exercise their habeas corpus jurisdiction in favour of that statutory scheme.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-49", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 103", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court applied the Peiroo exception in Reza. Like Peiroo, Reza involved a refugee claim. Mr. Reza claimed protection in Canada as a Convention refugee. A tribunal established under the Transitional Provisions of the Immigration Act, R.S.C. 1985, c. 28 (4th Supp.), determined that there was no credible basis to his claim and issued a deportation order against him. Mr. Reza was unsuccessful at his review by an immigration officer on humanitarian grounds and sought leave to commence judicial review of the immigration officer’s decision in the Federal Court.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-50", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 104", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mr. Reza subsequently challenged the constitutionality of the Immigration Act in the superior court. The motion judge stayed the constitutional challenge because the Federal Court had concurrent jurisdiction and was the more appropriate forum for the challenge. Concluding that he was bound by Peiroo, he said: In the absence of any showing that the available review process and appeal process is inappropriate or less advantageous than the habeas corpus jurisdiction of this Court, this Court should, in the exercise of its discretion, decline to grant relief on a habeas corpus application. Both jurisprudence and logic would support that this Court should leave the review of the immigration matters with the Federal Court of Canada: Re Peiroo (1989), 69 O.R. (2d) 253 (O.C.A.). To the same effect is the C.A. decision in Sheperd (1989) 52 C.C.C. (3d) 386. I am of course bound by these decisions. The case at bar does not involve an application for habeas corpus relief, but the relief sought, by way of declaration and injunctive relief, is also discretionary in this Court. The Federal Court has jurisdiction to grant the relief sought in this application and in my view the principles set out by the C.A. in Peiroo and in Sheperd are applicable to the case at bar. The circumstances described by Campbell in Bembeneck 69 C.C.C. (3d) 34 which influenced the Court to take jurisdiction, are not present here. As to whether the process is less advantageous in the Federal Court, as indicated, the relief is available in that Court and in my view the requirement of leave in that Court to make a claim for a declaratory judgment does not make the process less advantageous . . . . Accordingly, it is my view that this proceeding should be stayed and I so order. [pp. 399-400]", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-51", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 105–108", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "A majority in the Court of Appeal for Ontario reversed the motion judge’s decision. This Court allowed the appeal on the basis of the comprehensive scheme dealing with the same issues. The Immigration Act in force at the time gave the Federal Court an exclusive statutory mandate over immigration matters. As in Peiroo, the Court found that Parliament, in enacting the Immigration Act and granting exclusive jurisdiction to the Federal Court, intended the Federal Court to be the appropriate forum for deciding immigration cases. This weighed against the exercise of concurrent jurisdiction, suggesting instead that the statutory grant of exclusive jurisdiction to the Federal Court demonstrated legislative intent to bar individuals from pursuing parallel remedies in the superior courts.\n\nSecond, the factors of expertise and experience also favoured the Federal Court’s exclusive mandate over immigration matters. The Federal Court has expertise in immigration law, administrative law, and Federal Court procedure. While on the surface Mr. Reza’s case appeared to be a constitutional one, at its core the nature of the Charter challenge was fundamentally linked with immigration policy and process.\n\nThird, superior courts should decline to exercise jurisdiction in immigration cases where the Federal Court has concurrent jurisdiction to avoid issues of forum-shopping, inconsistent decision making and multiplicity of proceedings (see also Reference re Constitution Act, 1867, s. 92(10)(a) (1988), 64 O.R. (2d) 393 (C.A.)).\n\nThe motion judge had therefore rightly declined to exercise jurisdiction on the basis that Parliament had created a comprehensive scheme of review of immigration matters and the Federal Court was an effective and appropriate forum.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-52", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 109–111", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court considered Pringle, Peiroo and Reza in May. In May, we confirmed two exceptions to the availability of habeas corpus: it is not available to challenge the legality of a criminal conviction where a statute provides for a right of appeal; and it is not available “in matters of immigration law, because Parliament has put in place a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeas corpus is precluded”, namely the Peiroo exception (para. 40).\n\nThe grievance procedures under s. 81(1) of the Corrections and Conditional Release Regulations, SOR/92-620, were at issue in May: 81 (1) Where an offender decides to pursue a legal remedy for the offender’s complaint or grievance in addition to the complaint and grievance procedure referred to in these Regulations, the review of the complaint or grievance pursuant to these Regulations shall be deferred until a decision on the alternate remedy is rendered or the offender decides to abandon the alternate remedy.\n\nThe Court concluded that this language did not reveal a legislative intention to oust the superior courts’ habeas corpus jurisdiction (para. 60). Instead, the statute was found to contemplate that an inmate may choose to pursue a remedy like habeas corpus in addition to filing an administrative grievance. The language reflected a legislative intent that the statutory scheme operate in conjunction with the superior courts’ habeas corpus jurisdiction.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-53", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 112–113", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Court held that for immigration detainees seeking to challenge their continued detention as a violation of their Charter rights, the IRPA scheme governing matters of immigration law was a complete, comprehensive and expert scheme that is at least as broad as, and no less advantageous than review by way of habeas corpus in terms of expertise, onus, the nature of the remedy, and timeliness. Provincial superior courts should, as a result, decline to exercise their concurrent jurisdiction to review immigration detention by way of habeas corpus in favour of review before the Immigration Division and the Federal Court under the IRPA scheme.\n\nSection 162(1) of IRPA confirms the clear legislative intent to grant exclusive original jurisdiction to the Immigration Division over immigration matters: Sole and exclusive jurisdiction 162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. In Pringle, Laskin J. found that this language barred courts from entertaining the types of immigration proceedings over which the Board had been granted exclusive statutory authority. This specialized and exclusive expertise underlies the Peiroo exception to the availability of habeas corpus review in immigration matters.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-54", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 114–115", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court has consistently endorsed the Peiroo exception limiting the availability of habeas corpus review for immigration matters. In the absence of evidence that the “complete, comprehensive and expert statutory scheme” does not provide for a review at least as broad and no less advantageous than habeas corpus, I see no reason to disturb the Court’s jurisprudence by opening an alternative route, one that will lead to the forum shopping, inconsistent decision making, and multiplicity of proceedings the Court warned against in Reza. There is nothing in the language of the statutory scheme that restricts the scope of IRPA detention review to a partial review which must be supplemented by habeas corpus. On the contrary, the IRPA scheme is structured to provide detainees with at least the same rights they would receive on habeas corpus review.\n\nTo begin, the IRPA scheme for immigration detention review provides that all detentions must be reviewed regularly. Individuals detained for immigration purposes have the right to appear before the Immigration Division within 48 hours following their initial detention (s. 57(1)). A second review must take place during the next 7 days, and regular reviews at least once every 30 days thereafter (s. 57(2)). The detainee may make an application to the Immigration Division requesting a detention review before the expiry of the 7 or 30-day period (Immigration Division Rules, r. 9). Review hearings are structured to be expeditious and accessible, and they must be dealt with as informally and quickly as the circumstances and considerations of fairness and natural justice permit.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-55", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 116–117", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The IRPA scheme provides that immigration officers are responsible for bringing the detainee before the Immigration Division for all review hearings (s. 57(3)). The Immigration Division has a corresponding power to order immigration officials to bring the detainee to a location specified by the Division (Immigration Division Rules, r. 23). The Immigration Division can also facilitate access to the remedy by requiring the parties to appear at a conference to discuss any matter that would make the proceedings more fair and efficient, or to participate in scheduling the proceedings (Immigration Division Rules, rr. 20(1) and 21).\n\nUpon conducting a detention review, the Immigration Division may order the continued detention of a detainee, their unconditional release, or their release on any conditions the Immigration Division considers necessary. The Immigration Division makes its decisions in furtherance of the purposes of IRPA , which include protecting public safety and maintaining the security of Canadian society (s. 3(1)(h)).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-56", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 118–119", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "While the majority of detention review hearings occur before the Immigration Division, a detainee who is dissatisfied with the Immigration Division’s decision, whether on Charter grounds or otherwise, may apply for leave and judicial review to the Federal Court (IRPA , s. 72(1)). I agree with the comments of Catzman J.A. in Peiroo, rejecting the argument that the requirement for leave to appeal immigration decisions to the Federal Court rendered that remedy less advantageous than habeas corpus, where leave is not required. Catzman J.A. wrote: I consider the suggested distinction to be more apparent than real. In order to succeed on an application for habeas corpus, an applicant must show reasonable and probable ground for his complaint: Habeas Corpus Act, R.S.O. 1980, c. 193, s. 1(1). The requirement for leave imposed by s. 83.1(1) is clearly intended to be one of a series of screening mechanisms created by the Act to discour[a]ge the assertion of spurious or meritless claims. I have difficulty accepting that an applicant who is in a position to show reasonable and probable ground for complaint regarding the decision or order in respect of which he seeks review would fail to be accorded the requisite leave to bring an application for such review. Indeed, counsel have advised that such leave was granted in the present case . . . . [p. 259]\n\nMr. Chhina’s application for judicial review before the Federal Court was, in fact, expedited. It took one week less to be heard and decided than his application for habeas corpus before the Alberta Court of Queen’s Bench.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-57", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 120–121", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In any event, the requirement for leave to appeal to the Federal Court does not change the nature of the comprehensive detention review process under IRPA , which is governed by s. 58 of IRPA and s. 248 of the Regulations. The Immigration Division must order the release of a detainee unless the Minister has satisfied the Immigration Division that one or more of the grounds in s. 58(1) of IRPA are met: (a) The detainee is a danger to the public; (b) The detainee is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister; (c) The Minister is taking necessary steps to inquire into a reasonable suspicion that the detainee is inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; (d) The detainee’s identity has not been, but may be, established; or (e) If the detainee is a designated foreign national, the Minister is of the opinion that the identity of the detainee has not been established.\n\nIf s. 58 grounds are established, s. 248 of the Regulations requires the Immigration Division to consider the following additional factors to determine if detention should continue: (a) The reason for detention; (b) Length of time in detention; (c) Factors that may assist in determining how long detention is likely to continue; (d) Delays or lack of diligence on the detainee or the government’s part; and (e) Alternatives to detention.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-58", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 122–124", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The factors in s. 248 of the Regulations codify the factors articulated by Rothstein J. in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.). The s. 248 factors were endorsed by this Court in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350. They ensure that extended periods of detention do not violate the Charter .\n\nAs Rothstein J. noted in Sahin, through IRPA , “Parliament has dealt with the right of society to be protected from those who pose a danger to society and the right of Canada to control who enters and remains in this country” (p. 229). To achieve these purposes, the IRPA scheme confers upon members of the Immigration Division the power to detain individuals in anticipation of their likely danger to the public or likely failure to appear for removal from Canada.\n\nWhen making a decision as to whether to detain or release an individual under IRPA , Immigration Division members must always exercise their discretion in a way that accords with the Charter (see IRPA , s. 3(3)(d) ). There is a statutory presumption in favour of release before the Immigration Division, which “shall order the release” of a detainee unless it is satisfied that at least one of the grounds set out in s. 58 of IRPA is met, taking into account the factors in s. 248 of the Regulations.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-59", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 125–126", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Significantly, the mandatory s. 248 inquiry on review before the Immigration Division requires the Division to assess the lawfulness of ongoing immigration detention without placing any onus on the detainee. Unlike habeas corpus applications, where the detainee must raise a legitimate ground upon which to question the lawfulness of his or her detention, the Minister bears the onus throughout of justifying the detention before the Immigration Division. The detainee bears no onus to produce evidence as to any of the factors enunciated in s. 58 of IRPA or s. 248 of the Regulations.\n\nTo the extent that the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 572, and the Court of Appeal for Ontario in Chaudhary reached the contrary conclusion, they were, in my respectful view, wrongly decided. Moreover, the holding in Chaudhary that the Minister can satisfy his or her onus before the Immigration Division “simply by relying on the reasons given at prior detention hearings” (para. 87) is inconsistent with the Immigration Division’s obligation to conduct a fresh inquiry into the lawfulness of detention at each review. At each Immigration Division hearing, detainees are entitled to the same fresh review of their detention as they would be on habeas corpus review. In cases like Mr. Chhina’s, the Immigration Division must always reassess the prior evidence in light of the detainee’s Charter arguments.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-60", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 127–128", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "In particular, where a detainee challenges their detention as a violation of the Charter , the time between the prior and present review hearing will constitute new evidence that must inform the Immigration Division’s application of s. 58 of IRPA and s. 248 of the Regulations. It is not enough for the Minister to rely on previous Immigration Division decisions to satisfy the Immigration Division on the s. 58 and s. 248 inquiry. The integrity of the IRPA process is dependent on a fulsome review of the lawfulness of detention, including its Charter compliance, at every review hearing.\n\nThe Charter both guides the exercise of discretionary administrative decision making under IRPA and informs our interpretation of the scheme itself. The IRPA scheme must therefore be interpreted harmoniously with the Charter values that shape the contours of its application. As Justices Iacobucci and Arbour stated in Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248: The modern approach [to statutory interpretation] recognizes the multi-faceted nature of statutory interpretation. Textual considerations must be read in concert with legislative intent and established legal norms. Underlying this approach is the presumption that legislation is enacted to comply with constitutional norms, including the rights and freedoms enshrined in the Charter . . . . This presumption acknowledges the centrality of constitutional values in the legislative process, and more broadly, in the political and legal culture of Canada. [paras. 34-35]", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-61", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 129–130", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Importing Charter principles into the exercise of administrative discretion under IRPA requires that Immigration Division members apply the scheme in a manner that is at least as rigorous and fair as habeas corpus review. It is not enough that a statutory scheme is as broad and advantageous on paper as habeas corpus review, the scheme must also be applied in a manner that preserves the rights of detainees and the integrity of the process in the most comprehensive way possible.\n\nThat means that in carrying out their duties under the IRPA scheme, members of the Immigration Division must ensure the fullest possible review of immigration detention. This includes, and has always included, an obligation to weigh the purposes served by immigration detention against the detained individual’s ss. 7 , 9 and 12 Charter rights. The Immigration Division’s inquiry into the lawfulness of detention must take into account the detained individual’s s. 7 Charter right not to be deprived of liberty except in accordance with the principles of fundamental justice, his or her s. 9 right not to be arbitrarily detained or imprisoned, and the s. 12 right not to be subjected to cruel and unusual treatment or punishment. As Rothstein J. observed in Sahin, “it is not the words of [IRPA ] that vest adjudicators with such jurisdiction, but rather, the application of Charter principles to the exercise of discretion under [the scheme]” (p. 230).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-62", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 131–132", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "That, in my respectful view, necessarily includes the Immigration Division’s ability to consider the conditions of detention. A comprehensive, Charter-infused analysis of immigration detention may reveal that the length or conditions of detention are such that continued detention is not in accordance with the principles of fundamental justice (s. 7), is arbitrary because it is no longer reasonably furthering the state objective (s. 9) and/or amounts to cruel and unusual punishment (s. 12). The application of ss. 7 , 9 and 12 of the Charter to the IRPA scheme brings to light the Immigration Division’s obligation to assess the length, future duration and conditions of detention when balancing the state’s objectives against the detained individual’s rights.\n\nThe IRPA scheme therefore ensures the protection of other Charter rights by calling on the Immigration Division to consider whether detentions have become unlawful because of their length, uncertain duration and conditions. There is no principled reason to interpret the review provisions in a way that precludes scrutiny of conditions. Why apply a narrow, constrictive interpretation of a remedial statute when a wider, more protective interpretation is not only available, it is mandated by the purposes underlying the scheme. As these reasons seek to clarify, the s. 248 factors guide the Immigration Division in assessing whether ongoing detention is justified pursuant to the Charter based on: (a) The reason for detention; (b) Length of time in detention; (c) Factors that may assist in determining how long detention is likely to continue; (d) Delays or lack of diligence on the detainee or the government’s part; and (e) Alternatives to detention.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-63", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "para 133", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 248(a) requires the Immigration Division to weigh the state’s immigration objectives against the detained individual’s right to be free from arbitrary or indefinite restraints on liberty. As in habeas corpus review assessing compliance with the Charter , the Immigration Division must assess the strength of the reason for detention. A prior, fact-driven Immigration Division determination that the individual constitutes a flight risk or a danger to the public is entitled to deference on both IRPA and habeas corpus review (see Thanabalasingham, at para. 10 (IRPA review) and Brown v. Canada (Public Safety) (2018), 420 D.L.R. (4th) 124 (Ont. C.A.), at para. 29 (habeas corpus review)). The greater the danger posed to the public, the stronger the justification for ongoing detention (Sahin, at p. 231 (IRPA review); Ali v. Canada (Minister of Public Safety and Emergency Preparedness) (2017), 137 O.R. (3d) 498 (C.A.), at para. 24 (habeas corpus review)).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-64", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 134–135", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "As for s. 248(b), the justification for continued detention decreases as the length of time in detention increases. The Immigration Division must accord “significant weight” to the length of detention (see Sahin, at pp. 231-32). The strength of an immigration detainee’s argument that his ongoing detention has become a violation of the Charter increases with each subsequent review hearing. The detaining authorities bear a correlative onus to justify continued detention in the face of a continually solidifying Charter claim. A longer period of detention signifies that immigration authorities have had more time to effect removal, which they are expected to do as soon as reasonably possible. Accordingly, the evidentiary burden on the detaining authority to justify continued immigration detention increases as the length of detention increases. This approach to the length of detention is no different from habeas corpus (see Chaudhary, Ali and Brown).\n\nThe anticipated future length of detention in s. 248(c) of the Regulations requires an estimation of how long detention is likely to continue. A detention that is lawful for the purpose of removal may become arbitrary and in violation of s. 9 of the Charter when it becomes unhinged from its immigration-related purpose. Where removal appears unlikely and the future duration of detention cannot be ascertained, this is a factor that weighs in favour of release (Sahin, at p. 231; Charkaoui, at para. 115).", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-65", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 136–137", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "That is the same inquiry as in habeas corpus review. As Rouleau J.A. noted in Chaudhary: A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control. Where there is no reasonable prospect that the detention’s immigration-related purposes will be achieved within a reasonable time (with what is reasonable depending on the circumstances), a continued detention will violate the detainee’s ss. 7 and 9 Charter rights and no longer be legal. [para. 81]\n\nThe Immigration Division is, moreover, better positioned to assess and address the future duration of detention than the superior courts on habeas corpus review. As Létourneau J.A. held for the court in Canada (Minister of Citizenship and Immigration) v. Li, [2010] 2 F.C.R. 433 (C.A.), the short 30-day period between each Immigration Division review “allows for an estimation based on actual facts and pending proceedings instead of an estimation based on speculation as to potential facts and proceedings” (para. 66). The Immigration Division obtains an accurate picture of the detention every 30 days. It can assess progress over time by reviewing past proceedings and anticipating pending proceedings to guard against a violation of the detainee’s Charter rights.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-66", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 138–139", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 248(d) requires a consideration of delays or lack of diligence on the part of the detained individual or the immigration authorities. As Rothstein J. held in Sahin and this Court held in Charkaoui, unexplained delay or lack of diligence should count against the offending party (Sahin, at p. 231; Charkaoui, at para. 114). Superior courts reviewing immigration detention for compliance with ss. 7 , 9 and 12 of the Charter undertake the same inquiry. They look to the complexity of effecting the applicant’s removal from Canada, the reasonableness of the steps taken by immigration authorities to effect removal, and the extent to which the applicant has prolonged their detention by failing to cooperate with immigration authorities’ removal efforts (see Brown, at para. 36; Canada v. Dadzie, 2016 ONSC 6045, at para. 46 (CanLII)).\n\nIn Dadzie, a foreign national detained under IRPA applied to be released by way of habeas corpus. Clark J. applied the Charkaoui and Sahin principles about delay and diligence in immigration review in the habeas corpus context (para. 36). Mr. Dadzie’s lack of cooperation led Clark J. to conclude that Mr. Dadzie had not met his onus of showing that his detention had been exceptionally lengthy.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-67", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 140–141", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, s. 248(e) of the Regulations requires the Immigration Division to consider alternatives to detention. Alternatives to detention include outright release; a bond or guarantee; reporting requirements; confinement to a specific geographic area; and detention in a less restrictive form (Sahin, at p. 231). An assessment of the conditions of detention is a vital component of the inquiry into alternatives to detention under s. 248(e). Given the Immigration Division’s statutory mandate to assess alternatives to detention; the requirement to make Charter-compliant decisions; and its ability to exercise discretion as to the terms of release, the Division’s power to release a detainee on conditions must include an ability to modify the conditions of detention. Like the provincial superior courts on habeas corpus review, Immigration Division members must be taken to have the power to release the detainee from a “prison within a prison” pursuant to s. 58(3) (see R. v. Miller, [1985] 2 S.C.R. 613, at p. 637, per Le Dain J.; Robert J. Sharpe, The Law of Habeas Corpus (1976), at p. 149).\n\nIn sum, the process of review before the Immigration Division governed by s. 58 of IRPA and s. 248 of the Regulations demands that the Division consider the reasons for detention; the length of time in detention; the anticipated future length of detention; delays or lack of diligence; and the availability, effectiveness and appropriateness of alternatives to detention, including changes in the conditions of detention. These are the same considerations that superior courts weigh to assess whether ongoing immigration detention violates ss. 7 , 9 or 12 of the Charter on habeas corpus review.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-68", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 142–143", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Immigration Division has the same constitutional mandate as well as an overarching duty to give effect to “a legislative initiative purporting to provide a whole scheme . . . for the administration and review of proceedings in . . . immigration” (Peiroo, at p. 262; see also Reza v. Canada (1992), 11 O.R. (3d) 65 (C.A.), at p. 80). Mr. Chhina is attempting to ignore the body explicitly and exclusively tasked with carrying out the purposes of IRPA by wrapping his immigration detention with a Charter ribbon.\n\nThis Court in Reza rejected the applicant’s similar attempt to bypass the immigration scheme in search of a favourable constitutional disposition. In so doing, we acknowledged that the expertise of the Immigration Division in immigration matters extends to the constitutional aspects of immigration matters. As La Forest J. wrote in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5: It must be emphasized that the process of Charter decision making is not confined to abstract ruminations on constitutional theory. In the case of Charter matters which arise in a particular regulatory context, the ability of the decision maker to analyze competing policy concerns is critical . . . . . . . It is apparent, then, that an expert tribunal . . . can bring its specialized expertise to bear in a very functional and productive way in the determination of Charter issues which make demands on such expertise. [pp. 16-18]", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-17759-69", + "doc_type": "caselaw", + "act_code": "2019 SCC 29", + "act_short": "Chhina", + "act_name": "Canada (Public Safety and Emergency Preparedness) v. Chhina", + "section": "", + "citation": "Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29", + "marginal_note": "paras 144–147", + "heading": "Habeas corpus as a remedy for immigration detention; review of lengthy detention", + "part": "Supreme Court of Canada", + "division": "", + "text": "Despite Mr. Reza’s attempt to recast his challenge as a constitutional one, the Court recognized that his Charter arguments were fundamentally grounded in immigration policy. The same is true of Mr. Chhina’s Charter complaints, which arose in relation to the Immigration Division’s decisions to continue his detention. These are matters which lie at the heart of immigration policy. The Immigration Division is the most appropriate forum to integrate Charter rights within the overall scheme and purposes of IRPA .\n\nProperly interpreted, it is clear from the preceding review that the IRPA scheme for the review of immigration detention offers a remedy to detainees that is at least as broad, and no less advantageous than review by way of habeas corpus. It provides for the fullest possible review of the merits of a challenge to immigration detention. And where an individual is subject to an immigration detention that is said to violate his or her ss. 7 , 9 and 12 Charter rights, the Immigration Division’s review process, guided by s. 58 of IRPA and s. 248 of the Regulations, allows for at least the same substantive assessment as that undertaken by superior courts on habeas corpus review.\n\nThis Court has repeatedly affirmed that habeas corpus will not lie if the statutory alternative provides a remedy that is at least as favourable. In my respectful view, it does. Mr. Chhina’s case is therefore captured by the Peiroo exception to the availability of habeas corpus review. The superior court properly declined to exercise its habeas corpus jurisdiction in favour of the complete, comprehensive and expert scheme to which Mr. Chhina was entitled under the Act.\n\nI would allow the appeal. Appeal dismissed, Abella J. dissenting.", + "current_to": "2019-05-10", + "last_amended": "", + "history": "Also reported: [2019] 2 SCR 467", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" + }, + { + "id": "scc-1717-1", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 1–2", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "L’Heureux-Dubé J. -- Regulations made pursuant to s. 114(2) of the Immigration Act, R.S.C., 1985, c. I-2, empower the respondent Minister to facilitate the admission to Canada of a person where the Minister is satisfied, owing to humanitarian and compassionate considerations, that admission should be facilitated or an exemption from the regulations made under the Act should be granted. At the centre of this appeal is the approach to be taken by a court to judicial review of such decisions, both on procedural and substantive grounds. It also raises issues of reasonable apprehension of bias, the provision of written reasons as part of the duty of fairness, and the role of children’s interests in reviewing decisions made pursuant to s. 114(2). I. Factual Background\n\nMavis Baker is a citizen of Jamaica who entered Canada as a visitor in August of 1981 and has remained in Canada since then. She never received permanent resident status, but supported herself illegally as a live-in domestic worker for 11 years. She has had four children (who are all Canadian citizens) while living in Canada: Paul Brown, born in 1985, twins Patricia and Peter Robinson, born in 1989, and Desmond Robinson, born in 1992. After Desmond was born, Ms. Baker suffered from post-partum psychosis and was diagnosed with paranoid schizophrenia. She applied for welfare at that time. When she was first diagnosed with mental illness, two of her children were placed in the care of their natural father, and the other two were placed in foster care. The two who were in foster care are now again under her care, since her condition has improved.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-2", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 3–4", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant was ordered deported in December 1992, after it was determined that she had worked illegally in Canada and had overstayed her visitor’s visa. In 1993, Ms. Baker applied for an exemption from the requirement to apply for permanent residence outside Canada, based upon humanitarian and compassionate considerations, pursuant to s. 114(2) of the Immigration Act. She had the assistance of counsel in filing this application, and included, among other documentation, submissions from her lawyer, a letter from her doctor, and a letter from a social worker with the Children’s Aid Society. The documentation provided indicated that, although she was still experiencing psychiatric problems, she was making progress. It also stated that she might become ill again if she were forced to return to Jamaica, since treatment might not be available for her there. Ms. Baker’s submissions also clearly indicated that she was the sole caregiver for two of her Canadian-born children, and that the other two depended on her for emotional support and were in regular contact with her. The documentation suggested that she too would suffer emotional hardship if she were separated from them.\n\nThe response to this request was contained in a letter dated April 18, 1994 and signed by Immigration Officer M. Caden, stating that a decision had been made that there were insufficient humanitarian and compassionate grounds to warrant processing Ms. Baker’s application for permanent residence within Canada. This letter contained no reasons for the decision.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-3", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 5", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Upon request of the appellant’s counsel, she was provided with the notes made by Immigration Officer G. Lorenz, which were used by Officer Caden when making his decision. After a summary of the history of the case, Lorenz’s notes read as follows: PC is unemployed - on Welfare. No income shown - no assets. Has four Cdn.-born children- four other children in Jamaica- HAS A TOTAL OF EIGHT CHILDREN Says only two children are in her “direct custody”. (No info on who has ghe [sic] other two). There is nothing for her in Jamaica - hasn’t been there in a long time - no longer close to her children there - no jobs there - she has no skills other than as a domestic - children would suffer - can’t take them with her and can’t leave them with anyone here. Says has suffered from a mental disorder since ’81 - is now an outpatient and is improving. If sent back will have a relapse. Letter from Children’s Aid - they say PC has been diagnosed as a paranoid schizophrenic. - children would suffer if returned - Letter of Aug. ’93 from psychiatrist from Ont. Govm’t. Says PC had post-partum psychosis and had a brief episode of psychosis in Jam. when was 25 yrs. old. Is now an out-patient and is doing relatively well - deportation would be an extremely stressful experience. Lawyer says PS [sic] is sole caregiver and single parent of two Cdn born children. Pc’s mental condition would suffer a setback if she is deported etc. This case is a catastrophy [sic]. It is also an indictment of our “system” that the client came as a visitor in Aug. ’81, was not ordered deported until Dec. ’92 and in APRIL ’94 IS STILL HERE! The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-4", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 5–6", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity. However, because of the circumstances involved, there is a potential for adverse publicity. I recommend refusal but you may wish to clear this with someone at Region. There is also a potential for violence - see charge of “assault with a weapon” [Capitalization in original.]\n\nFollowing the refusal of her application, Ms. Baker was served, on May 27, 1994, with a direction to report to Pearson Airport on June 17 for removal from Canada. Her deportation has been stayed pending the result of this appeal. II. Relevant Statutory Provisions and Provisions of International Treaties", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-5", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 7", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Immigration Act, R.S.C., 1985, c. I-2 82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court -- Trial Division. 83. (1) A judgment of the Federal Court -- Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court -- Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. 114. . . . (2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. Immigration Regulations, 1978, SOR/78-172, as amended by SOR/93-44 2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. Convention on the Rights of the Child, Can. T.S. 1992 No. 3 Article 3 1.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-6", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 7", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. Article 9 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. 4.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-7", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 7", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned. Article 12 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. III. Judgments A. Federal Court -- Trial Division (1995), 101 F.T.R. 110", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-8", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 8", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Simpson J. delivered oral reasons dismissing the appellant’s judicial review application. She held that since there were no reasons given by Officer Caden for his decision, no affidavit was provided, and no reasons were required, she would assume, in the absence of evidence to the contrary, that he acted in good faith and made a decision based on correct principles. She rejected the appellant’s argument that the statement in Officer Lorenz’s notes that Ms. Baker would be a strain on the welfare system was not supported by the evidence, holding that it was reasonable to conclude from the reports provided that Ms. Baker would not be able to return to work. She held that the language of Officer Lorenz did not raise a reasonable apprehension of bias, and also found that the views expressed in his notes were unimportant, because they were not those of the decision-maker, Officer Caden. She rejected the appellant’s argument that the Convention on the Rights of the Child mandated that the appellant’s interests be given priority in s. 114(2) decisions, holding that the Convention did not apply to this situation, and was not part of domestic law. She also held that the evidence showed the children were a significant factor in the decision-making process. She rejected the appellant’s submission that the Convention gave rise to a legitimate expectation that the children’s interests would be a primary consideration in the decision.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-9", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 9", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Simpson J. certified the following as a “serious question of general importance” under s. 83(1) of the Immigration Act: “Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?” B. Federal Court of Appeal, [1997] 2 F.C. 127", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-10", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 10", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The reasons of the Court of Appeal were delivered by Strayer J.A. He held that pursuant to s. 83(1) of the Immigration Act, the appeal was limited to the question certified by Simpson J. He also rejected the appellant’s request to challenge the constitutional validity of s. 83(1). Strayer J.A. noted that a treaty cannot have legal effect in Canada unless implemented through domestic legislation, and that the Convention had not been adopted in either federal or provincial legislation. He held that although legislation should be interpreted, where possible, to avoid conflicts with Canada’s international obligations, interpreting s. 114(2) to require that the discretion it provides for must be exercised in accordance with the Convention would interfere with the separation of powers between the executive and legislature. He held that such a principle could also alter rights and obligations within the jurisdiction of provincial legislatures. Strayer J.A. also rejected the argument that any articles of the Convention could be interpreted to impose an obligation upon the government to give primacy to the interests of the children in a proceeding such as deportation. He held that the deportation of a parent was not a decision “concerning” children within the meaning of article 3. Finally, Strayer J.A. considered the appellant’s argument based on the doctrine of legitimate expectations. He noted that because the doctrine does not create substantive rights, and because a requirement that the best interests of the children be given primacy by a decision-maker under s. 114(2) would be to create a substantive right, the doctrine did not apply. IV. Issues", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-11", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 11", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Because, in my view, the issues raised can be resolved under the principles of administrative law and statutory interpretation, I find it unnecessary to consider the various Charter issues raised by the appellant and the interveners who supported her position. The issues raised by this appeal are therefore as follows: (1) What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review? (2) Were the principles of procedural fairness violated in this case? (i) Were the participatory rights accorded consistent with the duty of procedural fairness? (ii) Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness? (iii) Was there a reasonable apprehension of bias in the making of this decision? (3) Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker’s children? I note that it is the third issue that raises directly the issues contained in the certified question of general importance stated by Simpson J. V. Analysis A. Stated Questions Under Section 83(1) of the Immigration Act", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-12", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 12", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Court of Appeal held, in accordance with its decision in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4, that the requirement, in s. 83(1), that a “serious question of general importance” be certified for an appeal to be permitted restricts an appeal court to addressing the issues raised by the certified question. However, in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 25, this Court held that s. 83(1) does not require that the Court of Appeal address only the stated question and issues related to it: The certification of a “question of general importance” is the trigger by which an appeal is justified. The object of the appeal is still the judgment itself, not merely the certified question. Rothstein J. noted in Ramoutar v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 370 (T.D.), that once a question has been certified, all aspects of the appeal may be considered by the Court of Appeal, within its jurisdiction. I agree. The wording of s. 83(1) suggests, and Pushpanathan confirms, that if a “question of general importance” has been certified, this allows for an appeal from the judgment of the Trial Division which would otherwise not be permitted, but does not confine the Court of Appeal or this Court to answering the stated question or issues directly related to it. All issues raised by the appeal may therefore be considered here. B. The Statutory Scheme and the Nature of the Decision", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-13", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 13–14", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Before examining the various grounds for judicial review, it is appropriate to discuss briefly the nature of the decision made under s. 114(2) of the Immigration Act, the role of this decision in the statutory scheme, and the guidelines given by the Minister to immigration officers in relation to it.\n\nSection 114(2) itself authorizes the Governor in Council to authorize the Minister to exempt a person from a regulation made under the Act, or to facilitate the admission to Canada of any person. The Minister’s power to grant an exemption based on humanitarian and compassionate (H & C) considerations arises from s. 2.1 of the Immigration Regulations, which I reproduce for convenience: The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations. For the purpose of clarity, I will refer throughout these reasons to decisions made pursuant to the combination of s. 114(2) of the Act and s. 2.1 of the Regulations as “H & C decisions”.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-14", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 15", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Applications for permanent residence must, as a general rule, be made from outside Canada, pursuant to s. 9(1) of the Act. One of the exceptions to this is when admission is facilitated owing to the existence of compassionate or humanitarian considerations. In law, pursuant to the Act and the Regulations, an H & C decision is made by the Minister, though in practice, this decision is dealt with in the name of the Minister by immigration officers: see, for example, Minister of Employment and Immigration v. Jiminez-Perez, [1984] 2 S.C.R. 565, at p. 569. In addition, while in law, the H & C decision is one that provides for an exemption from regulations or from the Act, in practice, it is one that, in cases like this one, determines whether a person who has been in Canada but does not have status can stay in the country or will be required to leave a place where he or she has become established. It is an important decision that affects in a fundamental manner the future of individuals’ lives. In addition, it may also have an important impact on the lives of any Canadian children of the person whose humanitarian and compassionate application is being considered, since they may be separated from one of their parents and/or uprooted from their country of citizenship, where they have settled and have connections.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-15", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 16", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Immigration officers who make H & C decisions are provided with a set of guidelines, contained in chapter 9 of the Immigration Manual: Examination and Enforcement. The guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them. These guidelines are also available to the public. A number of statements in the guidelines are relevant to Ms. Baker’s application. Guideline 9.05 emphasizes that officers have a duty to decide which cases should be given a favourable recommendation, by carefully considering all aspects of the case, using their best judgment and asking themselves what a reasonable person would do in such a situation. It also states that although officers are not expected to “delve into areas which are not presented during examination or interviews, they should attempt to clarify possible humanitarian grounds and public policy considerations even if these are not well articulated”.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-16", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 17", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The guidelines also set out the bases upon which the discretion conferred by s. 114(2) and the Regulations should be exercised. Two different types of criteria that may lead to a positive s. 114(2) decision are outlined -- public policy considerations and humanitarian and compassionate grounds. Immigration officers are instructed, under guideline 9.07, to assure themselves, first, whether a public policy consideration is present, and if there is none, whether humanitarian and compassionate circumstances exist. Public policy reasons include marriage to a Canadian resident, the fact that the person has lived in Canada, has become established, and has become an “illegal de facto resident”, and the fact that the person may be a long-term holder of employment authorization or has worked as a foreign domestic. Guideline 9.07 states that humanitarian and compassionate grounds will exist if “unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada”. The guidelines also directly address situations involving family dependency, and emphasize that the requirement that a person leave Canada to apply from abroad may result in hardship for close family members of a Canadian resident, whether parents, children, or others who are close to the claimant, but not related by blood. They note that in such cases, the reasons why the person did not apply from abroad and the existence of family or other support in the person’s home country should also be considered. C. Procedural Fairness", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-17", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 18–19", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The first ground upon which the appellant challenges the decision made by Officer Caden is the allegation that she was not accorded procedural fairness. She suggests that the following procedures are required by the duty of fairness when parents have Canadian children and they make an H & C application: an oral interview before the decision-maker, notice to her children and the other parent of that interview, a right for the children and the other parent to make submissions at that interview, and notice to the other parent of the interview and of that person’s right to have counsel present. She also alleges that procedural fairness requires the provision of reasons by the decision-maker, Officer Caden, and that the notes of Officer Lorenz give rise to a reasonable apprehension of bias.\n\nIn addressing the fairness issues, I will consider first the principles relevant to the determination of the content of the duty of procedural fairness, and then address Ms. Baker’s arguments that she was accorded insufficient participatory rights, that a duty to give reasons existed, and that there was a reasonable apprehension of bias.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-18", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 20–21", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Both parties agree that a duty of procedural fairness applies to H & C decisions. The fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger the application of the duty of fairness: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653. Clearly, the determination of whether an applicant will be exempted from the requirements of the Act falls within this category, and it has been long recognized that the duty of fairness applies to H & C decisions: Sobrie v. Canada (Minister of Employment and Immigration) (1987), 3 Imm. L.R. (2d) 81 (F.C.T.D.), at p. 88; Said v. Canada (Minister of Employment and Immigration) (1992), 6 Admin. L.R. (2d) 23 (F.C.T.D.); Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.). (1) Factors Affecting the Content of the Duty of Fairness\n\nThe existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. As I wrote in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. All of the circumstances must be considered in order to determine the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal, supra, at p. 654; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per Sopinka J.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-19", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 22", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-20", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 23", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances. One important consideration is the nature of the decision being made and the process followed in making it. In Knight, supra, at p. 683, it was held that “the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making”. The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. See also Old St. Boniface, supra, at p. 1191; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109 (C.A.), at p. 118; Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p. 896, per Sopinka J.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-21", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 24", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "A second factor is the nature of the statutory scheme and the “terms of the statute pursuant to which the body operates”: Old St. Boniface, supra, at p. 1191. The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted: see D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 7-66 to 7-67.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-22", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 25", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. This was expressed, for example, by Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1113: A high standard of justice is required when the right to continue in one’s profession or employment is at stake. . . . A disciplinary suspension can have grave and permanent consequences upon a professional career. As Sedley J. (now Sedley L.J.) stated in R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery, [1994] 1 All E.R. 651 (Q.B.), at p. 667: In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people’s lives than the decisions of courts, and public law has since Ridge v. Baldwin [1963] 2 All E.R. 66, [1964] A.C. 40 been alive to that fact. While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it “judicial” in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body. The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-23", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 26", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness: Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (C.A.). Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded: D. J. Mullan, Administrative Law (3rd ed. 1996), at pp. 214-15; D. Shapiro, “Legitimate Expectation and its Application to Canadian Immigration Law” (1992), 8 J.L. & Social Pol’y 282, at p. 297; Canada (Attorney General) v. Human Rights Tribunal Panel (Canada) (1994), 76 F.T.R. 1. Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-24", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 26–28", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "This doctrine, as applied in Canada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.\n\nFifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, per Gonthier J.\n\nI should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that were followed respected the duty of fairness. Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights. The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision. (2) Legitimate Expectations", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-25", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 29", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "I turn now to an application of these principles to the circumstances of this case to determine whether the procedures followed respected the duty of procedural fairness. I will first determine whether the duty of procedural fairness that would otherwise be applicable is affected, as the appellant argues, by the existence of a legitimate expectation based upon the text of the articles of the Convention and the fact that Canada has ratified it. In my view, however, the articles of the Convention and their wording did not give rise to a legitimate expectation on the part of Ms. Baker that when the decision on her H & C application was made, specific procedural rights above what would normally be required under the duty of fairness would be accorded, a positive finding would be made, or particular criteria would be applied. This Convention is not, in my view, the equivalent of a government representation about how H & C applications will be decided, nor does it suggest that any rights beyond the participatory rights discussed below will be accorded. Therefore, in this case there is no legitimate expectation affecting the content of the duty of fairness, and the fourth factor outlined above therefore does not affect the analysis. It is unnecessary to decide whether an international instrument ratified by Canada could, in other circumstances, give rise to a legitimate expectation. (3) Participatory Rights", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-26", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 30", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The next issue is whether, taking into account the other factors related to the determination of the content of the duty of fairness, the failure to accord an oral hearing and give notice to Ms. Baker or her children was inconsistent with the participatory rights required by the duty of fairness in these circumstances. At the heart of this analysis is whether, considering all the circumstances, those whose interests were affected had a meaningful opportunity to present their case fully and fairly. The procedure in this case consisted of a written application with supporting documentation, which was summarized by the junior officer (Lorenz), with a recommendation being made by that officer. The summary, recommendation, and material was then considered by the senior officer (Caden), who made the decision.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-27", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 31", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Several of the factors described above enter into the determination of the type of participatory rights the duty of procedural fairness requires in the circumstances. First, an H & C decision is very different from a judicial decision, since it involves the exercise of considerable discretion and requires the consideration of multiple factors. Second, its role is also, within the statutory scheme, as an exception to the general principles of Canadian immigration law. These factors militate in favour of more relaxed requirements under the duty of fairness. On the other hand, there is no appeal procedure, although judicial review may be applied for with leave of the Federal Court -- Trial Division. In addition, considering the third factor, this is a decision that in practice has exceptional importance to the lives of those with an interest in its result -- the claimant and his or her close family members -- and this leads to the content of the duty of fairness being more extensive. Finally, applying the fifth factor described above, the statute accords considerable flexibility to the Minister to decide on the proper procedure, and immigration officers, as a matter of practice, do not conduct interviews in all cases. The institutional practices and choices made by the Minister are significant, though of course not determinative factors to be considered in the analysis. Thus, it can be seen that although some of the factors suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-28", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 32–33", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Balancing these factors, I disagree with the holding of the Federal Court of Appeal in Shah, supra, at p. 239, that the duty of fairness owed in these circumstances is simply “minimal”. Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.\n\nHowever, it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations. The Federal Court has held that procedural fairness does not require an oral hearing in these circumstances: see, for example, Said, supra, at p. 30.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-29", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 34", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "I agree that an oral hearing is not a general requirement for H & C decisions. An interview is not essential for the information relevant to an H & C application to be put before an immigration officer, so that the humanitarian and compassionate considerations presented may be considered in their entirety and in a fair manner. In this case, the appellant had the opportunity to put forward, in written form through her lawyer, information about her situation, her children and their emotional dependence on her, and documentation in support of her application from a social worker at the Children’s Aid Society and from her psychiatrist. These documents were before the decision-makers, and they contained the information relevant to making this decision. Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or notice of such a hearing did not, in my opinion, constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances, particularly given the fact that several of the factors point toward a more relaxed standard. The opportunity, which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case. (4) The Provision of Reasons", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-30", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 35–36", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant also submits that the duty of fairness, in these circumstances, requires that reasons be given by the decision-maker. She argues either that the notes of Officer Lorenz should be considered the reasons for the decision, or that it should be held that the failure of Officer Caden to give written reasons for his decision or a subsequent affidavit explaining them should be taken to be a breach of the principles of fairness.\n\nThis issue has been addressed in several cases of judicial review of humanitarian and compassionate applications. The Federal Court of Appeal has held that reasons are unnecessary: Shah, supra, at pp. 239-40. It has also been held that the case history notes prepared by a subordinate officer are not to be considered the decision-maker’s reasons: see Tylo v. Minister of Employment and Immigration (1995), 90 F.T.R. 157, at pp. 159-60. In Gheorlan v. Canada (Secretary of State) (1995), 26 Imm. L.R. (2d) 170 (F.C.T.D.), and Chan v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 62, it was held that the notes of the reviewing officer should not be taken to be the reasons for decision, but may help in determining whether a reviewable error exists. In Marques v. Canada (Minister of Citizenship and Immigration) (No. 1) (1995), 116 F.T.R. 241, an H & C decision was set aside because the decision-making officer failed to provide reasons or an affidavit explaining the reasons for his decision.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-31", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 37–38", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "More generally, the traditional position at common law has been that the duty of fairness does not require, as a general rule, that reasons be provided for administrative decisions: Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684; Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219, at p. 233; Public Service Board of New South Wales v. Osmond (1986), 159 C.L.R. 656 (H.C.A.), at pp. 665-66.\n\nCourts and commentators have, however, often emphasized the usefulness of reasons in ensuring fair and transparent decision-making. Though Northwestern Utilities dealt with a statutory obligation to give reasons, Estey J. held as follows, at p. 706, referring to the desirability of a common law reasons requirement: This obligation is a salutary one. It reduces to a considerable degree the chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question of appeal. . . . The importance of reasons was recently reemphasized by this Court in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at paras. 180-81.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-32", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 39", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review: R. A. Macdonald and D. Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123, at p. 146; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.), at para. 38. Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given: de Smith, Woolf, & Jowell, Judicial Review of Administrative Action (5th ed. 1995), at pp. 459-60. I agree that these are significant benefits of written reasons.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-33", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 40", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Others have expressed concerns about the desirability of a written reasons requirement at common law. In Osmond, supra, Gibbs C.J. articulated, at p. 668, the concern that a reasons requirement may lead to an inappropriate burden being imposed on administrative decision-makers, that it may lead to increased cost and delay, and that it “might in some cases induce a lack of candour on the part of the administrative officers concerned”. Macdonald and Lametti, supra, though they agree that fairness should require the provision of reasons in certain circumstances, caution against a requirement of “archival” reasons associated with court judgments, and note that the special nature of agency decision-making in different contexts should be considered in evaluating reasons requirements. In my view, however, these concerns can be accommodated by ensuring that any reasons requirement under the duty of fairness leaves sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-34", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 41", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "In England, a common law right to reasons in certain circumstances has developed in the case law: see M. H. Morris, “Administrative Decision-makers and the Duty to Give Reasons: An Emerging Debate” (1997), 11 C.J.A.L.P. 155, at pp. 164-68; de Smith, Woolf & Jowell, supra, at pp. 462-65. In R. v. Civil Service Appeal Board, ex parte Cunningham, [1991] 4 All E.R. 310 (C.A.), reasons were required of a board deciding the appeal of the dismissal of a prison official. The House of Lords, in R. v. Secretary of State for the Home Department, ex parte Doody, [1994] 1 A.C. 531, imposed a reasons requirement on the Home Secretary when exercising the statutory discretion to decide on the period of imprisonment that a prisoner who had been imposed a life sentence should serve before being entitled to a review. Lord Mustill, speaking for all the law lords on the case, held that although there was no general duty to give reasons at common law, in those circumstances, a failure to give reasons was unfair. Other English cases have held that reasons are required at common law when there is a statutory right of appeal: see Norton Tool Co. v. Tewson, [1973] 1 W.L.R. 45 (N.I.R.C.), at p. 49; Alexander Machinery (Dudley) Ltd. v. Crabtree, [1974] I.C.R. 120 (N.I.R.C.).", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-35", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 42", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Some Canadian courts have imposed, in certain circumstances, a common law obligation on administrative decision-makers to provide reasons, while others have been more reluctant. In Orlowski v. British Columbia (Attorney-General) (1992), 94 D.L.R. (4th) 541 (B.C.C.A.), at pp. 551-52, it was held that reasons would generally be required for decisions of a review board under Part XX.1 of the Criminal Code , based in part on the existence of a statutory right of appeal from that decision, and also on the importance of the interests affected by the decision. In R.D.R. Construction Ltd. v. Rent Review Commission (1982), 55 N.S.R. (2d) 71 (C.A.), the court also held that because of the existence of a statutory right of appeal, there was an implied duty to give reasons. Smith D.J., in Taabea v. Refugee Status Advisory Committee, [1980] 2 F.C. 316 (T.D.), imposed a reasons requirement on a ministerial decision relating to refugee status, based upon the right to apply to the Immigration Appeal Board for redetermination. Similarly, in the context of evaluating whether a statutory reasons requirement had been adequately fulfilled in Boyle v. Workplace Health, Safety and Compensation Commission (N.B.) (1996), 179 N.B.R. (2d) 43 (C.A.), Bastarache J.A. (as he then was) emphasized, at p. 55, the importance of adequate reasons when appealing a decision. However, the Federal Court of Appeal recently rejected the submission that reasons were required in relation to a decision to declare a permanent resident a danger to the public under s. 70(5) of the Immigration Act: Williams, supra.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-36", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 43", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-37", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 44", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my view, however, the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision. Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary, as emphasized by Macdonald and Lametti, supra, when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways. I conclude that the notes of Officer Lorenz satisfy the requirement for reasons under the duty of procedural fairness in this case, and they will be taken to be the reasons for decision. (5) Reasonable Apprehension of Bias", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-38", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 45", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker. The respondent argues that Simpson J. was correct to find that the notes of Officer Lorenz cannot be considered to give rise to a reasonable apprehension of bias because it was Officer Caden who was the actual decision-maker, who was simply reviewing the recommendation prepared by his subordinate. In my opinion, the duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision. The subordinate officer plays an important part in the process, and if a person with such a central role does not act impartially, the decision itself cannot be said to have been made in an impartial manner. In addition, as discussed in the previous section, the notes of Officer Lorenz constitute the reasons for the decision, and if they give rise to a reasonable apprehension of bias, this taints the decision itself.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-39", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 46", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The test for reasonable apprehension of bias was set out by de Grandpré J., writing in dissent, in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394: . . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . [T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” This expression of the test has often been endorsed by this Court, most recently in R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 11, per Major J.; at para. 31, per L’Heureux-Dubé and McLachlin JJ.; and at para. 111, per Cory J.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-40", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 47", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "It has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Old St. Boniface, supra, at p. 1192. The context here is one where immigration officers must regularly make decisions that have great importance to the individuals affected by them, but are also often critical to the interests of Canada as a country. They are individualized, rather than decisions of a general nature. They also require special sensitivity. Canada is a nation made up largely of people whose families migrated here in recent centuries. Our history is one that shows the importance of immigration, and our society shows the benefits of having a diversity of people whose origins are in a multitude of places around the world. Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, an understanding of others, and an openness to difference.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-41", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 48", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my opinion, the well-informed member of the community would perceive bias when reading Officer Lorenz’s comments. His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. Most unfortunate is the fact that they seem to make a link between Ms. Baker’s mental illness, her training as a domestic worker, the fact that she has several children, and the conclusion that she would therefore be a strain on our social welfare system for the rest of her life. In addition, the conclusion drawn was contrary to the psychiatrist’s letter, which stated that, with treatment, Ms. Baker could remain well and return to being a productive member of society. Whether they were intended in this manner or not, these statements give the impression that Officer Lorenz may have been drawing conclusions based not on the evidence before him, but on the fact that Ms. Baker was a single mother with several children, and had been diagnosed with a psychiatric illness. His use of capitals to highlight the number of Ms. Baker’s children may also suggest to a reader that this was a reason to deny her status. Reading his comments, I do not believe that a reasonable and well-informed member of the community would conclude that he had approached this case with the impartiality appropriate to a decision made by an immigration officer. It would appear to a reasonable observer that his own frustration with the “system” interfered with his duty to consider impartially whether the appellant’s admission should be facilitated owing to humanitarian or compassionate considerations. I conclude that the notes of Officer Lorenz demonstrate a reasonable apprehension of bias. D.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-42", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 48–50", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Review of the Exercise of the Minister’s Discretion\n\nAlthough the finding of reasonable apprehension of bias is sufficient to dispose of this appeal, it does not address the issues contained in the “serious question of general importance” which was certified by Simpson J. relating to the approach to be taken to children’s interests when reviewing the exercise of the discretion conferred by the Act and the Regulations. Since it is important to address the central questions which led to this appeal, I will also consider whether, as a substantive matter, the H & C decision was improperly made in this case.\n\nThe appellant argues that the notes provided to her show that, as a matter of law, the decision should be overturned on judicial review. She submits that the decision should be held to a standard of review of correctness, that principles of administrative law require this discretion to be exercised in accordance with the Convention, and that the Minister should apply the best interests of the child as a primary consideration in H & C decisions. The respondent submits that the Convention has not been implemented in Canadian law, and that to require that s. 114(2) and the Regulations made under it be interpreted in accordance with the Convention would be improper, since it would interfere with the broad discretion granted by Parliament, and with the division of powers between the federal and provincial governments. (1) The Approach to Review of Discretionary Decision-Making", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-43", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 51–52", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "As stated earlier, the legislation and Regulations delegate considerable discretion to the Minister in deciding whether an exemption should be granted based upon humanitarian and compassionate considerations. The Regulations state that “[t]he Minister is . . . authorized to” grant an exemption or otherwise facilitate the admission to Canada of any person “where the Minister is satisfied that” this should be done “owing to the existence of compassionate or humanitarian considerations”. This language signals an intention to leave considerable choice to the Minister on the question of whether to grant an H & C application.\n\nThe concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries. As K. C. Davis wrote in Discretionary Justice (1969), at p. 4: A public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction. It is necessary in this case to consider the approach to judicial review of administrative discretion, taking into account the “pragmatic and functional” approach to judicial review that was first articulated in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, and has been applied in subsequent cases including Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at pp. 601-7, per L’Heureux-Dubé J., dissenting, but not on this issue; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; and Pushpanathan, supra.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-44", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 53", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations: see, for example, Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pp. 7-8; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231. A general doctrine of “unreasonableness” has also sometimes been applied to discretionary decisions: Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223 (C.A.). In my opinion, these doctrines incorporate two central ideas -- that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker’s jurisdiction. These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-45", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 53–54", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "121), in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038).\n\nIt is, however, inaccurate to speak of a rigid dichotomy of “discretionary” or “non-discretionary” decisions. Most administrative decisions involve the exercise of implicit discretion in relation to many aspects of decision making. To give just one example, decision-makers may have considerable discretion as to the remedies they order. In addition, there is no easy distinction to be made between interpretation and the exercise of discretion; interpreting legal rules involves considerable discretion to clarify, fill in legislative gaps, and make choices among various options. As stated by Brown and Evans, supra, at p. 14-47: The degree of discretion in a grant of power can range from one where the decision-maker is constrained only by the purposes and objects of the legislation, to one where it is so specific that there is almost no discretion involved. In between, of course, there may be any number of limitations placed on the decision-maker’s freedom of choice, sometimes referred to as “structured” discretion.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-46", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 55", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The “pragmatic and functional” approach recognizes that standards of review for errors of law are appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others entitled to less: Pezim, supra, at pp. 589-90; Southam, supra, at para. 30; Pushpanathan, supra, at para. 27. Three standards of review have been defined: patent unreasonableness, reasonableness simpliciter, and correctness: Southam, at paras. 54-56. In my opinion the standard of review of the substantive aspects of discretionary decisions is best approached within this framework, especially given the difficulty in making rigid classifications between discretionary and non-discretionary decisions. The pragmatic and functional approach takes into account considerations such as the expertise of the tribunal, the nature of the decision being made, and the language of the provision and the surrounding legislation. It includes factors such as whether a decision is “polycentric” and the intention revealed by the statutory language. The amount of choice left by Parliament to the administrative decision-maker and the nature of the decision being made are also important considerations in the analysis. The spectrum of standards of review can incorporate the principle that, in certain cases, the legislature has demonstrated its intention to leave greater choices to decision-makers than in others, but that a court must intervene where such a decision is outside the scope of the power accorded by Parliament. Finally, I would note that this Court has already applied this framework to statutory provisions that confer significant choices on administrative bodies, for example, in reviewing the exercise of the remedial powers conferred by the statute at issue in Southam, supra.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-47", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 56–57", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Incorporating judicial review of decisions that involve considerable discretion into the pragmatic and functional analysis for errors of law should not be seen as reducing the level of deference given to decisions of a highly discretionary nature. In fact, deferential standards of review may give substantial leeway to the discretionary decision-maker in determining the “proper purposes” or “relevant considerations” involved in making a given determination. The pragmatic and functional approach can take into account the fact that the more discretion that is left to a decision-maker, the more reluctant courts should be to interfere with the manner in which decision-makers have made choices among various options. However, though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter . (2) The Standard of Review in This Case\n\nI turn now to an application of the pragmatic and functional approach to determine the appropriate standard of review for decisions made under s. 114(2) and Regulation 2.1, and the factors affecting the determination of that standard outlined in Pushpanathan, supra. It was held in that case that the decision, which related to the determination of a question of law by the Immigration and Refugee Board, was subject to a standard of review of correctness. Although that decision was also one made under the Immigration Act, the type of decision at issue was very different, as was the decision-maker. The appropriate standard of review must, therefore, be considered separately in the present case.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-48", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 58–59", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The first factor to be examined is the presence or absence of a privative clause, and, in appropriate cases, the wording of that clause: Pushpanathan, at para. 30. There is no privative clause contained in the Immigration Act, although judicial review cannot be commenced without leave of the Federal Court -- Trial Division under s. 82.1. As mentioned above, s. 83(1) requires the certification of a “serious question of general importance” by the Federal Court -- Trial Division before that decision may be appealed to the Court of Appeal. Pushpanathan shows that the existence of this provision means there should be a lower level of deference on issues related to the certified question itself. However, this is only one of the factors involved in determining the standard of review, and the others must also be considered.\n\nThe second factor is the expertise of the decision-maker. The decision- maker here is the Minister of Citizenship and Immigration or his or her delegate. The fact that the formal decision-maker is the Minister is a factor militating in favour of deference. The Minister has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-49", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 60–61", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The third factor is the purpose of the provision in particular, and of the Act as a whole. This decision involves considerable choice on the part of the Minister in determining when humanitarian and compassionate considerations warrant an exemption from the requirements of the Act. The decision also involves applying relatively “open-textured” legal principles, a factor militating in favour of greater deference: Pushpanathan, supra, at para. 36. The purpose of the provision in question is also to exempt applicants, in certain circumstances, from the requirements of the Act or its Regulations. This factor, too, is a signal that greater deference should be given to the Minister. However, it should also be noted, in favour of a stricter standard, that this decision relates directly to the rights and interests of an individual in relation to the government, rather than balancing the interests of various constituencies or mediating between them. Its purpose is to decide whether the admission to Canada of a particular individual, in a given set of circumstances, should be facilitated.\n\nThe fourth factor outlined in Pushpanathan considers the nature of the problem in question, especially whether it relates to the determination of law or facts. The decision about whether to grant an H & C exemption involves a considerable appreciation of the facts of that person’s case, and is not one which involves the application or interpretation of definitive legal rules. Given the highly discretionary and fact-based nature of this decision, this is a factor militating in favour of deference.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-50", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 62", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as “patent unreasonableness”. I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter. (3) Was this Decision Unreasonable?", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-51", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 63–64", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "I will next examine whether the decision in this case, and the immigration officer’s interpretation of the scope of the discretion conferred upon him, were unreasonable in the sense contemplated in the judgment of Iacobucci J. in Southam, supra, at para. 56: An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. In particular, the examination of this question should focus on the issues arising from the “serious question of general importance” stated by Simpson J.: the question of the approach to be taken to the interests of children when reviewing an H & C decision.\n\nThe notes of Officer Lorenz, in relation to the consideration of “H & C factors”, read as follows: The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-52", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 65", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my opinion, the approach taken to the children’s interests shows that this decision was unreasonable in the sense contemplated in Southam, supra. The officer was completely dismissive of the interests of Ms. Baker’s children. As I will outline in detail in the paragraphs that follow, I believe that the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision of the immigration officer. Professor Dyzenhaus has articulated the concept of “deference as respect” as follows: Deference as respect requires not submission but a respectful attention to the reasons offered or which could be offered in support of a decision. . . . (D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286.) The reasons of the immigration officer show that his decision was inconsistent with the values underlying the grant of discretion. They therefore cannot stand up to the somewhat probing examination required by the standard of reasonableness.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-53", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 66", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The wording of s. 114(2) and of Regulation 2.1 requires that a decision-maker exercise the power based upon “compassionate or humanitarian considerations” (emphasis added). These words and their meaning must be central in determining whether an individual H & C decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister to determine whether the person’s admission should be facilitated owing to the existence of such considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner. This Court has found that it is necessary for the Minister to consider an H & C request when an application is made: Jiminez-Perez, supra. Similarly, when considering it, the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-54", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 67", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Determining whether the approach taken by the immigration officer was within the boundaries set out by the words of the statute and the values of administrative law requires a contextual approach, as is taken to statutory interpretation generally: see R. v. Gladue, [1999] 1 S.C.R. 688; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paras. 20-23. In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children. Children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of children’s interests as important considerations governing the manner in which H & C powers should be exercised may be found, for example, in the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself. (a) The Objectives of the Act", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-55", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 68–69", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The objectives of the Act include, in s. 3(c): to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad; Although this provision speaks of Parliament’s objective of reuniting citizens and permanent residents with their close relatives from abroad, it is consistent, in my opinion, with a large and liberal interpretation of the values underlying this legislation and its purposes to presume that Parliament also placed a high value on keeping citizens and permanent residents together with their close relatives who are already in Canada. The obligation to take seriously and place important weight on keeping children in contact with both parents, if possible, and maintaining connections between close family members is suggested by the objective articulated in s. 3(c). (b) International Law\n\nAnother indicator of the importance of considering the interests of children when making a compassionate and humanitarian decision is the ratification by Canada of the Convention on the Rights of the Child, and the recognition of the importance of children’s rights and the best interests of children in other international instruments ratified by Canada. International treaties and conventions are not part of Canadian law unless they have been implemented by statute: Francis v. The Queen, [1956] S.C.R. 618, at p. 621; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141, at pp. 172-73. I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-56", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 70", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330: [T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.] The important role of international human rights law as an aid in interpreting domestic law has also been emphasized in other common law countries: see, for example, Tavita v. Minister of Immigration, [1994] 2 N.Z.L.R. 257 (C.A.), at p. 266; Vishaka v. Rajasthan, [1997] 3 L.R.C. 361 (S.C. India), at p. 367. It is also a critical influence on the interpretation of the scope of the rights included in the Charter : Slaight Communications, supra; R. v. Keegstra, [1990] 3 S.C.R. 697.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-57", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 71", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The values and principles of the Convention recognize the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future. In addition, the preamble, recalling the Universal Declaration of Human Rights, recognizes that “childhood is entitled to special care and assistance”. A similar emphasis on the importance of placing considerable value on the protection of children and their needs and interests is also contained in other international instruments. The United Nations Declaration of the Rights of the Child (1959), in its preamble, states that the child “needs special safeguards and care”. The principles of the Convention and other international instruments place special importance on protections for children and childhood, and on particular consideration of their interests, needs, and rights. They help show the values that are central in determining whether this decision was a reasonable exercise of the H & C power. (c) The Ministerial Guidelines", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-58", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 72", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "Third, the guidelines issued by the Minister to immigration officers recognize and reflect the values and approach discussed above and articulated in the Convention. As described above, immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members. The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-59", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 73", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the “humanitarian” and “compassionate” considerations that guide the exercise of the discretion. I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned. In addition, the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to Jamaica might cause Ms. Baker, given the fact that she had been in Canada for 12 years, was ill and might not be able to obtain treatment in Jamaica, and would necessarily be separated from at least some of her children.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-60", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 74", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "It follows that I disagree with the Federal Court of Appeal’s holding in Shah, supra, at p. 239, that a s. 114(2) decision is “wholly a matter of judgment and discretion” (emphasis added). The wording of s. 114(2) and of the Regulations shows that the discretion granted is confined within certain boundaries. While I agree with the Court of Appeal that the Act gives the applicant no right to a particular outcome or to the application of a particular legal test, and that the doctrine of legitimate expectations does not mandate a result consistent with the wording of any international instruments, the decision must be made following an approach that respects humanitarian and compassionate values. Therefore, attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H & C decision to be made in a reasonable manner. While deference should be given to immigration officers on s. 114(2) judicial review applications, decisions cannot stand when the manner in which the decision was made and the approach taken are in conflict with humanitarian and compassionate values. The Minister’s guidelines themselves reflect this approach. However, the decision here was inconsistent with it.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-61", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 75–76", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. E. Conclusions and Disposition\n\nTherefore, both because there was a violation of the principles of procedural fairness owing to a reasonable apprehension of bias, and because the exercise of the H & C discretion was unreasonable, I would allow this appeal.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-62", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 77–78", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant requested that solicitor-client costs be awarded to her if she were successful in her appeal. The majority of this Court held as follows in Young v. Young, [1993] 4 S.C.R. 3, at p. 134: Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. There has been no such conduct on the part of the Minister shown during this litigation, and I do not believe that this is one of the exceptional cases where solicitor-client costs should be awarded. I would allow the appeal, and set aside the decision of Officer Caden of April 18, 1994, with party-and-party costs throughout. The matter will be returned to the Minister for redetermination by a different immigration officer. The reasons of Cory and Iacobucci JJ. were delivered by\n\nIacobucci J. - I agree with L’Heureux-Dubé J.’s reasons and disposition of this appeal, except to the extent that my colleague addresses the effect of international law on the exercise of ministerial discretion pursuant to s. 114(2) of the Immigration Act, R.S.C., 1985, c. I-2. The certified question at issue in this appeal concerns whether federal immigration authorities must treat the best interests of the child as a primary consideration in assessing an application for humanitarian and compassionate consideration under s. 114(2) of the Act, given that the legislation does not implement the provisions contained in the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, a multilateral convention to which Canada is party. In my opinion, the certified question should be answered in the negative.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-63", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "paras 79–80", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is a matter of well-settled law that an international convention ratified by the executive branch of government is of no force or effect within the Canadian legal system until such time as its provisions have been incorporated into domestic law by way of implementing legislation: Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141. I do not agree with the approach adopted by my colleague, wherein reference is made to the underlying values of an unimplemented international treaty in the course of the contextual approach to statutory interpretation and administrative law, because such an approach is not in accordance with the Court’s jurisprudence concerning the status of international law within the domestic legal system.\n\nIn my view, one should proceed with caution in deciding matters of this nature, lest we adversely affect the balance maintained by our Parliamentary tradition, or inadvertently grant the executive the power to bind citizens without the necessity of involving the legislative branch. I do not share my colleague’s confidence that the Court’s precedent in Capital Cities, supra, survives intact following the adoption of a principle of law which permits reference to an unincorporated convention during the process of statutory interpretation. Instead, the result will be that the appellant is able to achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-1717-64", + "doc_type": "caselaw", + "act_code": "[1999] 2 SCR 817", + "act_short": "Baker", + "act_name": "Baker v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817", + "marginal_note": "para 81", + "heading": "Procedural fairness in administrative decisions; humanitarian and compassionate review; the duty to give reasons", + "part": "Supreme Court of Canada", + "division": "", + "text": "The primacy accorded to the rights of children in the Convention, assuming for the sake of argument that the factual circumstances of this appeal are included within the scope of the relevant provisions, is irrelevant unless and until such provisions are the subject of legislation enacted by Parliament. In answering the certified question in the negative, I am mindful that the result may well have been different had my colleague concluded that the appellant’s claim fell within the ambit of rights protected by the Canadian Charter of Rights and Freedoms . Had this been the case, the Court would have had an opportunity to consider the application of the interpretive presumption, established by the Court’s decision in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, and confirmed in subsequent jurisprudence, that administrative discretion involving Charter rights be exercised in accordance with similar international human rights norms. Appeal allowed with costs.", + "current_to": "1999-07-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1717/index.do" + }, + { + "id": "scc-39-1", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 1", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177\n\nHarbhajan Singh Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nSadhu Singh Thandi Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nParamjit Singh Mann Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nKewal Singh Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nCharanjit Singh Gill Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nIndrani Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nSatnam Singh Appellant;\n\nand\n\nMinister of Employment and Immigration Respondent.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nFederation of Canadian Sikh Societies and Canadian Council of Churches Interveners.\n\nFile Nos.: 18209, 17997, 17952, 17898, 18207, 18235, 17904.\n\n1984: April 30, May 1; 1985: April 4.\n\nPresent: Dickson C.J. and Ritchie*, Beetz, Estey, McIntyre, Lamer and Wilson JJ.\n\n*Ritchie J. took no part in the judgment.\n\non appeal from the federal court of appeal\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Security of the person ‑‑ Immigration ‑‑ Convention refugee ‑‑ Whether procedures for determination of refugee status in accordance with principles of fundamental justice ‑‑ Whether refugee claimants entitled to the protection of s. 7 of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 26 , 32(1) ‑‑ Constitution Act, 1982, s. 52(1) ‑‑ Immigration Act, 1976, 1976‑77 (Can.), c. 52, ss. 2, 45, 55, 70, 71.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-2", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 2", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "Constitutional law ‑‑ Charter of Rights ‑‑ Remedies ‑‑ Court of competent jurisdiction ‑‑ Appeals from applications for judicial review under s. 28 of the Federal Court Act ‑‑ Remedial power under s. 24(1) of the Charter limited to decisions made on a judicial or quasi‑judicial basis ‑‑ Canadian Charter of Rights and Freedoms, s. 24(1) ‑‑ Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28.\n\nCivil rights ‑‑ Immigration ‑‑ Convention refugee ‑‑ Whether procedures for determination of refugee status in accordance with principles of fundamental justice ‑‑ Remedy ‑‑ Canadian Bill of Rights, R.S.C. 1970, App. III, ss. 1, 2(e) ‑‑ Canadian Charter of Rights and Freedoms, s. 26 ‑‑ Immigration Act, 1976, 1976‑77 (Can.), c. 52, ss. 2, 71 ‑‑ Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.\n\nAppellants claim Convention refugee status as defined in s. 2(1) of the Immigration Act, 1976. The Minister of Employment and Immigration, acting on the advice of the Refugee Status Advisory Committee, determined pursuant to s. 45 of the Act that none of the appellants was a Convention refugee. The Immigration Appeal Board, acting under s. 71(1) of the Act, denied the subsequent applications for redetermination of status and the Federal Court of Appeal refused applications, made under s. 28 of the Federal Court Act, for judicial review of those decisions. The Court considered whether the procedures for the adjudication of refugee status claims set out in the Immigration Act, 1976 violate s. 7 of the Canadian Charter of Rights and Freedoms and s. 2(e) of the Canadian Bill of Rights.\n\nHeld: The appeals should be allowed.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-3", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 3", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "Per Dickson C.J. and Lamer and Wilson JJ.: Appellants, in the determination of their claims, are entitled to assert the protection of s. 7 of the Charter which guarantees \"everyone ... the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice\". The term \"everyone\" in s. 7 includes every person physically present in Canada and by virtue of such presence amenable to Canadian law. The phrase \"security of the person\" encompasses freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself. A Convention refugee has the right under s. 55 of the Immigration Act, 1976 not to \"... be removed from Canada to a country where his life or freedom would be threatened ...\". The denial of such a right amounts to a deprivation of \"security of the person\" within the meaning of s. 7. Although appellants are not entitled at this stage to assert rights as Convention refugees, having regard to the potential consequences for them of a denial of that status if they are in fact persons with a \"well‑founded fear of persecution\", they are entitled to fundamental justice in the adjudication of their status.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-4", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 4", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "The procedure for determining refugee status claims established in the Immigration Act, 1976 is inconsistent with the requirements of fundamental justice articulated in s. 7. At a minimum, the procedural scheme set up by the Act should provide the refugee claimant with an adequate opportunity to state his case and to know the case he has to meet. The administrative procedures, found in ss. 45 to 48 of the Immigration Act, 1976, require the Refugee Status Advisory Committee and the Minister to act fairly in carrying out their duties but do not envisage an opportunity for the refugee claimant to be heard other than through his claim and the transcript of his examination under oath. Further, the Act does not envisage the refugee claimant's being given an opportunity to comment on the advice the Refugee Status Advisory Committee has given the Minister. Under section 71(1) of the Act, the Immigration Appeal Board must reject an application for redetermination unless it is of the opinion that it is more likely than not that the applicant will be able to succeed. An application, therefore, will usually be rejected before the refugee claimant has even had an opportunity to discover the Minister's case against him in the context of a hearing. Such procedures do not accord the refugee claimant fundamental justice and are incompatible with s. 7 of the Charter . Respondent failed to demonstrate that these procedures constitute a reasonable limit on the appellants' rights within the meaning of s. 1 of the Charter . Pursuant to s. 52(1) of the Constitution Act, 1982 , s. 71(1) of the Immigration Act, 1976 is, to the extent of the inconsistency with s. 7, of no force and effect.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-5", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 5", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 24(1) of the Charter grants broad remedial powers to \"a court of competent jurisdiction\". This phrase premises the existence of jurisdiction from a source external to the Charter itself. These are appeals from the Federal Court of Appeal on applications for judicial review under s. 28 of the Federal Court Act. Accordingly, this Court's jurisdiction is no greater than that of the Federal Court of Appeal and is limited to decisions made on a judicial or quasi‑judicial basis. Only the decisions of the Immigration Appeal Board were therefore reviewable. All seven cases are remanded to the Board for a hearing on the merits in accordance with the principles of fundamental justice.\n\nCases Cited", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-6", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 6", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Queen v. Operation Dismantle Inc., [1983] 1 F.C. 745; Collin v. Lussier, [1983] 1 F.C. 218; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; Singh v. Minister of Employment and Immigration, [1982] 2 F.C. 689; Boun‑Leua v. Minister of Employment and Immigration, [1981] 1 F.C. 259; Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470; Brempong v. Minister of Employment and Immigration, [1981] 1 F.C. 211; Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639; Hurt v. Minister of Manpower and Immigration, [1978] 2 F.C. 340; Mensah v. Minister of Employment and Immigration, [1982] 1 F.C. 70; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373 (U.K.); Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Wieckowska v. Lanthier, [1980] 1 F.C. 655; Kwiatkowsky v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856, affirming (1980), 34 N.R. 237 (F.C.A.); Lugano v. Minister of Manpower and Immigration, [1976] 2 F.C. 438; Alliance des Professeurs Catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 S.C.R. 140; Singh v. Minister of Employment and Immigration, [1983] 2 F.C. 347; Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Morgentaler v. The Queen, [1976] 1 S.C.R. 616; Curr v. The Queen, [1972] S.C.R. 889; R. v. Berrie (1975), 24 C.C.C. (2d) 66; Rebrin v. Bird and Minister of Citizenship and Immigration, [1961] S.C.R. 376; Louie Yuet Sun v. The Queen, [1961] S.C.R. 70; U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); Mitchell v. The Queen, [1976] 2 S.C.R.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-7", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 7", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "570; The Japanese Immigrant Case, 189 U.S. 86 (1903); Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953); Immigration and Naturalization Service v. Chadha, 77 L Ed (2d) 317 (1983); Duke v. The Queen, [1972] S.C.R. 917; Stein v. The Ship \"Kathy K\", [1976] 2 S.C.R. 802; Permaul v. Minister of Employment and Immigration, F.C.A., No. A‑576‑83, November 24, 1983; Saraos v. Minister of Employment and Immigration, [1982] 1 F.C. 304; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; City of Toronto v. Outdoor Neon Displays Ltd., [1960] S.C.R. 307; Rescue Army v. Municipal Court, 331 U.S. 549 (1947), referred to.\n\nPer Beetz, Estey and McIntyre JJ.: The procedures followed for determining Convention refugee status in these cases are in conflict with s. 2(e) of the Canadian Bill of Rights. Where a process which comes under the legislative authority of the Parliament involves the determination of \"rights and obligations\", this paragraph grants the right to \"a fair hearing in accordance with the principles of fundamental justice\". These principles do not impose an oral hearing in all cases. The procedural content required by fundamental justice in any given case depends on the nature of the legal rights at issue and on the severity of the consequences to the individuals concerned. With respect to the type of hearing warranted in the circumstances, threats to life or liberty by a foreign power are relevant.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-8", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 8", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "Appellants' claims to refugee status have been denied without their being afforded a full oral hearing at a single stage of the proceedings before any of the bodies or officials empowered to adjudicate upon their claims on the merits. In order to comply with s. 2(e), such a hearing had to be held. Under the Immigration Act, 1976, a Convention refugee has the right to \"remain\" in Canada or, if a Minister's permit cannot be obtained, at least the right not to be removed to a country where life and freedom is threatened, and to re‑enter Canada if no safe country is willing to accept him. These rights are of vital importance to the appellants. Moreover, where life or liberty may depend on findings of fact and credibility, the opportunity to make written submissions, even if coupled with an opportunity to reply in writing to allegations of fact and law against interest, is not sufficient.\n\nThis Court, in these appeals from applications for judicial review under s. 28 of the Federal Court Act, is only concerned with the determination made by the Immigration Appeal Board pursuant to s. 71(1) of the Immigration Act, 1976. This subsection, as drafted, is inconsistant with the holding of an oral hearing and, accordingly, in these cases, is incompatible with s. 2(e) of the Canadian Bill of Rights. This Court declared \"inoperative\" in these cases all the words of s. 71(1) following the words \"Where the Board...consider the application\". The Immigration Appeal Board, as a result, will hold hearings on the merits to decide the cases and, in doing so, shall take into account only the facts or materials specified in s. 70(2) of the Act.\n\nCases Cited", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-9", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 9", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Queen v. Drybones, [1970] S.C.R. 282, applied; Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639, considered; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; Mitchell v. The Queen, [1976] 2 S.C.R. 570, distinguished; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109; Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12; Komo Construction Inc. v. Commission des relations de travail du Québec, [1968] S.C.R. 172; MacDonald v. The Queen, [1977] 2 S.C.R. 665; Kwiatkowski v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856, referred to.\n\nStatutes and Regulations Cited\n\nAct for the Recognition and Protection of Human Rights and Fundamental Freedoms, 1960 (Can.), c. 44, s. 5(2).\n\nCanada Evidence Act, 1980‑81‑82‑83 (Can.), c. 111, Schedule III, s. 36.1.\n\nCanadian Bill of Rights, R.S.C. 1970, App. III, ss. 1, 2(e).\n\nCanadian Charter of Rights and Freedoms , ss. 1 , 7 , 24(1) , 26 , 32(1) .\n\nConstitution Act, 1982 , s. 52(1) .\n\nFederal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28.\n\nImmigration Act, 1976, 1976‑77 (Can.), c. 52, ss. 2, 3g), 4, 5(1), 23, 27, 32, 37, 45 to 48, 55, 70, 71, 72.\n\nUnited Nations Convention Relating to the Status of Refugees, chap. 1, art. 1, para. A(2).\n\nUniversal Declaration of Human Rights (1948), art. 25(1).\n\nAuthors Cited\n\nCanada, Law Reform Commission. Working Paper No. 26, Medical Treatment and Criminal Law, Ottawa, Minister of Supply and Services Canada, 1980.\n\nCanada, Minister of Employment and Immigration. The Refugee Status Determination Process, Ottawa, 1981.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-10", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 10", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "Garant, Patrice. \"Fundamental Freedoms and Natural Justice\" in W. Tarnopolsky and G.‑A. Beaudoin (eds.), The Canadian Charter of Rights and Freedoms , Toronto, Carswell, 1982.\n\nManning, Morris. Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982, Toronto, Emond‑Montgomery, 1983.\n\nPue, W. Wesley. Natural Justice in Canada, Vancouver, Butterworth (Western Canada), 1981.\n\nScharpf, Fritz W. \"Judicial Review and the Political Question: A Functional Analysis\" (1966), 75 Yale L.J. 517.\n\nTarnopolsky, Walter. The Canadian Bill of Rights, 2nd ed., Toronto, McClelland & Stewart, 1975.\n\nAPPEALS from judgments of the Federal Court of Appeal dismissing appellants' applications for judicial review of decisions of the Immigration Appeal Board dismissing appellants' applications for redetermination of their refugee claims. Appeals allowed.\n\nIan Scott, Q.C., for the appellants Harbhajan Singh, Sadhu Singh Thandi, Paramjit Singh Mann, Kewal Singh, Charanjit Singh Gill and Indrani.\n\nC. D. Coveney, for the appellant Satnam Singh.\n\nE. A. Bowie, Q.C., and Roslyn Levine, for the respondent.\n\nMendel M. Green, Q.C., Barbara Jackman and Donald Chiasson, for the interveners.\n\nJUDGMENT\n\nThe appeals are allowed and the decisions of the Federal Court of Appeal and the Immigration Appeal Board are set aside. The applications of the appellants for redetermination of their refugee claims are remanded to the Immigration Appeal Board for a hearing on the merits in accordance with principles of fundamental justice.\n\nThe appellants are entitled to a declaration that s. 71(1) of the Immigration Act, 1976 in its present form has no application to them.\n\n‑‑‑‑‑‑‑‑‑‑‑‑\n\nThe reasons of Dickson C.J. and Lamer and Wilson JJ. were delivered by", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-11", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 11", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "1. Wilson J.‑‑The issue raised by these appeals is whether the procedures set out in the Immigration Act, 1976, 1976‑77 (Can.), c. 52 as amended, for the adjudication of the claims of persons claiming refugee status in Canada deny such claimants rights they are entitled to assert under s. 7 of the Canadian Charter of Rights and Freedoms .\n\n2. On February 16, 1984 the Court granted leave to appeal in these seven cases and they were consolidated for hearing on April 30, 1984. Six of the appellants were unrepresented by counsel when they made their applications for leave to appeal and counsel was appointed to represent them at the hearing of the appeal. The seventh appellant, Mr. Satnam Singh, was represented by his own counsel both at the hearing of the leave application and at the hearing of the appeal. The Court also had the benefit of a joint submission by counsel for two interveners, the Federation of Canadian Sikh Societies and the Canadian Council of Churches. During the hearing on April 30 and May 1, 1984 submissions by counsel were confined to the application of the Canadian Charter of Rights and Freedoms . On December 7, 1984 counsel were invited to make written submissions to the Court on the application of the Canadian Bill of Rights.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-12", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 12", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "3. At the hearing of the appeals in April and May 1984 counsel took somewhat different approaches to the presentation of the issues but I think it is fair to say that in substance the appeals were argued on the basis that the Court should approach the appeals in three stages. First, the Court should decide whether refugee claimants physically present in Canada are entitled to the protection of s. 7 of the Charter . If the answer to this question is yes, then the Court should consider whether the relevant provisions of the Immigration Act, 1976, in particular s. 71(1), deny the appellants' rights under s. 7 of the Charter . Finally, if the Court answers the second question in the affirmative, it should determine whether any limitation on the appellants' rights imposed by the Act is justified within the meaning of s. 1 of the Charter .\n\n4. In the written submissions presented in December 1984 counsel considered whether the procedures for the adjudication of refugee status claims violated the Canadian Bill of Rights, in particular s. 2(e). There can be no doubt that this statute continues in full force and effect and that the rights conferred in it are expressly preserved by s. 26 of the Charter . However, since I believe that the present situation falls within the constitutional protection afforded by the Canadian Charter of Rights and Freedoms , I prefer to base my decision upon the Charter .\n\n5. I think the suggestion of counsel that the appeals should be approached in three stages is a good one and I am adopting it in the analysis which follows. First, however, it is important to present the facts and the legislative context within which the appeals have arisen.\n\n1. The facts", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-13", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 13", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "6. The facts and procedural history of the seven appeals have a great deal in common and it was because of these similarities that the Court felt it appropriate to consolidate the hearing. Each appellant, in accordance with the procedures set out in the Immigration Act, 1976, asserted a claim to Convention refugee status as defined in s. 2(1) of the Act. The Minister of Employment and Immigration, acting on the advice of the Refugee Status Advisory Committee, made determinations pursuant to s. 45 of the Act that none of the appellants was a Convention refugee. Each of the appellants then made an application for redetermination of his or her refugee claim by the Immigration Appeal Board pursuant to s. 70 of the Act. In accordance with s. 71(1) of the Act the Immigration Appeal Board in each case refused to allow the application to proceed on the basis that it did not believe that there were \"reasonable grounds to believe that a claim could, upon the hearing of the application, be established...\". Each applicant then sought judicial review of the Board's decision pursuant to the provisions of s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. These applications were denied by the Federal Court of Appeal.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-14", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 14", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "7. So much for the similarities. There are a number of distinctions, both substantive and procedural, which can be drawn among the cases of the seven appellants. Six of the appellants are citizens of India who claim Convention refugee status on the basis of their fear of persecution by Indian authorities as a result of their political activities and beliefs, in particular their association with the Akali Dal party in that country. The seventh appellant, Ms. Indrani, is a citizen of Guyana who is of Indian extraction. Her claim to Convention refugee status is based on her fear of persecution on racial, religious and political grounds. Each appellant, in the course of his or her examination under oath pursuant to s. 45 of the Act, set out different facts in support of their refugee status claims. It is common ground that the Court is not concerned on these appeals with the merits of the individual claims made by the appellants.\n\n8. The procedure whereby each appellant came to assert his or her refugee status claim also varies from case to case. Four of the appellants (Mr. Harbhajan Singh, Mr. Sadhu Singh Thandi, Mr. Charanjit Singh Gill and Mr. Satnam Singh) were refused admission into Canada at a port of entry. Inquiries were held pursuant to s. 23 of the Act to determine whether removal orders should be made against them and it was in the course of these inquiries that the appellants raised their claim to refugee status. In accordance with the procedures under s. 45, the s. 23 inquiries were continued until it was determined that removal orders should be made against the appellants. At that point the inquiries under s. 23 were adjourned and each appellant was examined under oath respecting his claim by a senior immigration officer pursuant to s. 45(1).", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-15", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 15", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "9. The other three appellants asserted their refugee claims in the course of inquiries conducted pursuant to s. 27(4) of the Act to determine whether they should be removed after having been admitted to Canada. One of the appellants, Mr. Paramjit Singh Mann, succeeded in eluding inquiry within the meaning of s. 27(2)(f) when he first came to Canada in July 1977. This came to the attention of immigration officials when he surrendered himself in November 1980 with the result that a s. 27 inquiry was held. Ms. Indrani came to Canada in October 1979 using a false passport and was granted visitor status until November 30, 1979. It eventually came to the attention of immigration officials that she was working illegally and in March 1981 she was arrested. On the basis of ss. 27(2)(b) and 27(2)(g) an inquiry was held during the course of which she asserted her refugee status claim. Finally, Mr. Kewal Singh came to Canada in November 1980 and was granted temporary status as a visitor. When his visitor status expired he surrendered himself to immigration authorities and, because he had ceased to be a visitor, an inquiry was held on the basis of s. 27(2)(e).", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-16", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 16", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "10. Inquiries under s. 27 differ from those under s. 23 principally in their effect; in the former case the outcome is liable to be the issuance of a deportation order or a departure notice pursuant to s. 32(6) whereas the latter is liable to lead to a removal order pursuant to s. 32(5), the nature of the order being of significance in its effect on the person's right to return to Canada at some point in the future. The procedures for the determination of refugee status found in ss. 45 to 48 of the Act and the procedures for redetermination by the Immigration Appeal Board found in ss. 70 and 71 do not draw a significant distinction between inquiries held pursuant to s. 23 and those held pursuant to s. 27.\n\n11. Counsel have presented these appeals on the basis that in terms of the application of the Charter the factual and procedural differences just adverted to have no significance. While I believe this to be the case I am also of the view that it is useful to bear the existence of such differences in mind, particularly as the scheme of the Immigration Act, 1976 itself is being explored.\n\n2. The Scheme of the Immigration Act, 1976", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-17", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 17", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "12. The appellants allege that the procedural mechanisms set out in the Immigration Act, 1976, as opposed to the application of those procedures to their particular cases, have deprived them of their rights under the Charter . It is important, therefore, to understand these provisions in the context of the Act as a whole. If, as a matter of statutory interpretation, the procedural fairness sought by the appellants is not excluded by the scheme of the Act, there is, of course, no basis for resort to the Charter . The issue may be resolved on other grounds. In City of Toronto v. Outdoor Neon Displays Ltd., [1960] S.C.R. 307, at p. 314, this Court refused counsel's invitation to express an opinion as to the constitutional validity of a statute in a situation in which it was not necessary to the Court's decision to do so. I note as well that the United States Supreme Court has on many occasions articulated a policy of not deciding constitutional issues in a context where it was not strictly necessary to do so: see Rescue Army v. Municipal Court, 331 U.S. 549 (1947) at pp. 568‑75, and cases cited therein. Accordingly, I believe that the Court should scrutinize closely:\n\n(a) the rights which Convention refugees are accorded under the Act; and\n\n(b) the procedures the Act sets out for adjudicating claims for refugee status\n\nbefore turning to the application of the Charter in this context.\n\n(a) The Rights of Convention Refugees under the Immigration Act, 1976", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-18", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 18", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "13. The appellants make no attempt to assert a constitutional right to enter and remain in Canada analogous to the right accorded to Canadian citizens by s. 6(1) of the Charter . Equally, at common law an alien has no right to enter or remain in Canada except by leave of the Crown: Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376. As Martland J. expressed the law in Prata at p. 380 \"The right of aliens to enter and remain in Canada is governed by the Immigration Act\" and s. 5(1) states that \"No person, other than a person described in section 4 , has a right to come into or remain in Canada\".", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-19", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 19", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "14. However, the Immigration Act, 1976 does provide Convention refugees with certain limited rights to enter and remain in Canada. The Act envisages the assertion of a refugee claim under s. 45 in the context of an inquiry, which presupposes that the refugee claimant is physically present in Canada and within the jurisdiction of the Canadian authorities. The Act and Regulations do envisage the resettlement in Canada of refugees who are outside the country but the following observations are not made with reference to these individuals. When a person who is in Canada has been determined to be a Convention refugee, s. 47(1) requires the adjudicator to reconvene the inquiry held pursuant to s. 23 or s. 27 in order to determine whether the individual is a person described in s. 4(2) of the Act. Section 4(2) provides that a Convention refugee \"while lawfully in Canada [has] a right to remain in Canada...\" except where it is established that he or she falls into the category of criminal or subversive persons set out in s. 4(2)(b). If it is determined that the person is a Convention refugee described in s. 4(2), s. 47(3) requires the adjudicator to allow the person to remain in Canada notwithstanding any other provisions of the Act or Regulations.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-20", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 20", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "15. The scope of the refugee's right to remain in Canada is made problematic by the existence in s. 4(2) of the phrase \"while lawfully in Canada\". Since it is a prerequisite to the holding of an examination under s. 45 that a refugee claimant be a person against whom a removal order or departure notice may be made (see Singh v. Minister of Employment and Immigration, [1982] 2 F.C. 689), it is apparent that nobody who is determined to be a Convention refugee will, in one sense, be lawfully in Canada. In practice this circularity is avoided by the issuance of a Minister's permit pursuant to s. 37 at the time a person is determined to be a Convention refugee, thus regularizing the individual's status for purposes of s. 4(2). The case of Boun‑Leua v. Minister of Employment and Immigration, [1981] 1 F.C. 259, is illustrative of the difficulties which can arise where a Minister's permit is not issued.\n\n16. In Boun‑Leua the applicant was a stateless person who was born in Laos but had been granted refugee status in France and had taken up residence there. He came to Canada as a visitor in December 1978 and, when his visitor status expired in January 1979, he surrendered himself to immigration officials and made a refugee claim. In due course it was determined that he was a Convention refugee but he was not issued a Minister's permit. At the resumption of the inquiry held pursuant to s. 47(1) the adjudicator determined that he was not a Convention refugee \"lawfully in Canada\" and she issued him a departure notice. The applicant sought judicial review of this decision pursuant to s. 28 of the Federal Court Act. Urie J., writing for the Federal Court of Appeal, dismissed the application. At pages 263‑64 he made the following observations:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-21", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 21", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "A Convention refugee, on the other hand, is not given the right to reside permanently in Canada nor, by being designated such, is he given the right to remain in Canada for a specific period of time. Presumably his right to remain is dependent upon his continuing to be a refugee from the country of his nationality. If for any reason, he no longer can fulfil the requirements to be characterized as a Convention refugee, he is subject to a removal or deportation order. The duration of his stay, as a Convention refugee, can only be fixed by a Ministerial permit issued pursuant to section 37 of the Act. If no such permit issued then, if he is within an inadmis‑ sible class, he may be the subject of a removal or deportation order. The only rights accorded to a Convention refugee are first, not to be returned to a country where his life or freedom would be threatened, a right granted by virtue of section 55 of the Act, and, second, to be able to appeal a removal order or a deportation order made against him on a question of law or fact or of mixed law and fact and \"on the ground that, having regard to the existence of compassionate or humanitarian considerations\" he should not be removed from Canada (sections 72(2)(a) and (b) and 72(3)).", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-22", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 22", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "From all of the above, I can only conclude that the determination by the Minister that a person is a Convention refugee does not, as urged by applicant's counsel, confer on that person a status of some undefined nature. It gives him only the rights to which I have previously alluded. In this case the applicant as a refugee admitted to France can return to France at least so long as his travel permit, issued by that country to him, is valid. France having found him to be a refugee, then Canada as a signatory to the United Nations Convention Relating to the Status of Refugees would find it difficult to determine that he was not a refugee. Whether or not such is the case is immaterial in this case. Since he can return to France, which is not the country of his nationality, or where his life or freedom would be threatened, there is no obligation on the Minister to permit him to remain in Canada. The applicant has no legal right to do so. In my view, therefore, applicant counsel's submission that the determination by the Minister that his client was a Convention refugee gave him the right to remain in Canada must fail.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-23", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 23", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "17. Although I agree with Urie J.'s decision on the facts before him, I believe that his reasons may have placed the position of the Convention refugee under the Act too low. In addition to the important rights set out in ss. 55 and 72, it seems to me that a Convention refugee is entitled to require the Minister to exercise his discretion to give a permit under s. 37 fairly and in accordance with proper principles and, if the Minister fails to do so, the Convention refugee may have a right to take proceedings under s. 18(a) of the Federal Court Act: see Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470 at p. 479 (per Spence J.); Brempong v. Minister of Employment and Immigration, [1981] 1 F.C. 211.\n\n18. In the Boun‑Leua case, as Urie J. pointed out, the applicant was able to return to France where his life or liberty would not be threatened and it would not be inconsistent with Canada's obligations to refugees to require him to return there. On the other hand, s. 2(2) and s. 3(g) of the Immigration Act, 1976 envisage that the Act will be administered in a way that fulfils Canada's international legal obligations. These provisions read as follows:\n\n2. ...\n\n(2) The term \"Convention\" in the expression \"Convention refugee\" refers to the United Nations Convention Relating to the Status of Refugees signed at Geneva on the 28th day of July, 1951 and includes the Protocol thereto signed at New York on the 31st day of January, 1967.\n\n3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need\n\n...", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-24", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 24", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "(g) to fulfil Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted;\n\n19. The Preamble to the Convention and Protocol provides:\n\nConsidering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on December 10 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.\n\nConsidering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms,\n\n...\n\nThe term \"refugee\" is defined in the Convention as follows:\n\nA. For the purposes of the present Convention, the term `refugee' shall apply to any person who:\n\n...owing to well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.\n\n...\n\n(United Nations Convention Relating to the Status of Refugees. HCR/INF/29/Rev. 2, Chap. 1, Article 1, paragraph A(2).)", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-25", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 25", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "20. I believe therefore that a Convention refugee who does not have a safe haven elsewhere is entitled to rely on this country's willingness to live up to the obligations it has undertaken as a signatory to the United Nations Convention Relating to the Status of Refugees: (see Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639 at pp. 657‑62 (per Pigeon J. dissenting); Hurt v. Minister of Manpower and Immigration, [1978] 2 F.C. 340).\n\n(b) The Procedures for the Determination of Convention Refugee Status\n\n21. The term \"Convention refugee\" is defined in s. 2(1) of the Act as follows:\n\n\"Convention refugee\" means any person who, by reason of a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,\n\n(a) is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to avail himself of the protection of that country, or\n\n(b) not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country;\n\n22. As noted above, the procedures for determination of whether an individual is a Convention refugee and for redetermination of claims by the Immigration Appeal Board are set out in ss. 45 to 48 and 70 to 71 respectively. Focussing first on the initial determination, s. 45 provides as follows:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-26", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 26", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "45. (1) Where, at any time during an inquiry, the person who is the subject of the inquiry claims that he is a Convention refugee, the inquiry shall be continued and, if it is determined that, but for the person's claim that he is a Convention refugee, a removal order or a departure notice would be made or issued with respect to that person, the inquiry shall be adjourned and that person shall be examined under oath by a senior immigration officer respecting his claim.\n\n(2) When a person who claims that he is a Convention refugee is examined under oath pursuant to subsection (1), his claim, together with a transcript of the examination with respect thereto, shall be referred to the Minister for determination.\n\n(3) A copy of the transcript of an examination under oath referred to in subsection (1) shall be forwarded to the person who claims that he is a Convention refugee.\n\n(4) Where a person's claim is referred to the Minister pursuant to subsection (2), the Minister shall refer the claim and the transcript of the examination under oath with respect thereto to the Refugee Status Advisory Committee established pursuant to section 48 for consideration and, after having obtained the advice of that Committee, shall determine whether or not the person is a Convention refugee.\n\n(5) When the Minister makes a determination with respect to a person's claim that he is a Convention refugee, the Minister shall thereupon in writing inform the senior immigration officer who conducted the examination under oath respecting the claim and the person who claimed to be a Convention refugee of his determination.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-27", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 27", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "(6) Every person with respect to whom an examination under oath is to be held pursuant to subsection (1) shall be informed that he has the right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at his examination and shall be given a reasonable opportunity, if he so desires and at his own expense, to obtain such counsel.\n\nIt is difficult to characterize this procedure as a \"hearing\" in the traditional sense: see Brempong, supra, at pp. 217‑18. As Urie J. noted in Brempong at p. 217, n. 7, the procedure is technically \"non‑adversarial\" since only the claimant is entitled to be represented by counsel. Urie J. described the procedure as \"purely administrative in nature\" and this characterization was adopted by counsel for the respondent Minister in the course of argument on these appeals.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-28", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 28", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "23. In Mensah v. Minister of Employment and Immigration, [1982] 1 F.C. 70, Pratte J. observed at p. 71 that by enacting s. 45 \"Parliament did not intend to subject either the Minister or the Refugee Status Advisory Committee to the procedural duty of fairness invoked by the applicant\". If Pratte J. intended by this statement to suggest that Parliament has excluded the duty of fairness articulated in this Court's decision in Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, I believe that he must have been mistaken. In Nicholson at p. 324, Laskin C.J. expressly adopted the statement of Megarry J. in Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373 (U.K.), at p. 1378 \"that in the sphere of the so‑called quasi‑judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness\". In other words, the mere classification of the Minister's duty under s. 45 as administrative does not eliminate the duty of fairness set out in Nicholson: see Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at p. 750 (per Estey J.); Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602 at pp. 623‑24, 628‑31 (per Dickson J., as he then was).", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-29", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 29", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "24. The existence of a duty of fairness does not, however, define its content. I believe, therefore, that Pratte J.'s observation in Mensah was intended to make the point that the duty of fairness imposed on the Minister in the context of s. 45 did not require the Minister to allow a refugee claimant to respond to the Minister's objections to his claim as counsel in that case had submitted. In his concurring reasons in Martineau, supra, Dickson J. (as he then was) observed at p. 630 that \"The content of the principles of natural justice and fairness in application to the individual cases will vary according to the circumstances of each case . . .\". As Estey J. pointed out in the Inuit Tapirisat case at p. 755: \"It is always a question of construing the statutory scheme as a whole in order to see to what degree, if any, the legislator intended the principle [of procedural fairness] to apply\".", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-30", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 30", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "25. Counsel for the respondent in this case submitted that the Act did not contemplate an oral hearing before the Minister or the Refugee Status Advisory Committee and that the Minister and the Committee were entitled to rely upon what he described as \"the government's knowledge of world affairs\" in rendering a decision. As I read s. 45, and in particular s. 45(4), these submissions appear to be correct. It is clear from s. 45(4) that the Act does not envisage an opportunity for the refugee claimant to be heard other than through his claim and the transcript of his examination under oath. Nor does the Act appear to envisage the refugee claimant's being given an opportunity to comment on the advice the Refugee Status Advisory Committee has given to the Minister. The insulation of the process is reinforced by the fact that the Minister is entitled under s. 123 of the Act to delegate his powers under s. 45 and in fact these powers are customarily delegated to the Registrar of the Refugee Status Advisory Committee: see Wieckowska v. Lanthier, [1980] 1 F.C. 655 at p. 656. In substance, therefore, it would appear that the Refugee Status Advisory Committee acts as a decision‑making body isolated from the persons whose status it is adjudicating and that it applies policies and makes use of information to which the refugee claimants themselves have no access. The Committee and the Minister have an obligation to act fairly in carrying out their duties in the sense that decisions cannot be made arbitrarily and they must make an effort to treat equivalent cases in equivalent fashion.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-31", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 31", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "I do not think, however, that the courts can import into the duty of fairness procedural constraints on the Committee's operation which are incompatible with the decision‑making scheme set up by Parliament.\n\n26. In any event, the Minister's exercise of his jurisdiction under s. 45 is not reviewable on these appeals. As Urie J. noted in the Brempong case, supra, judicial review under s. 28 of the Federal Court Act is unavailable with respect to \"a decision or order of an administrative nature not required by law to be made on a judicial or quasi‑judicial basis . . .\".Thus, despite Nicholson's tendency to eliminate the significance of the distinction between administrative and judicial or quasi‑judicial functions for purposes of determining whether procedural fairness in decision‑making is required, the Federal Court Act preserves the significance of the distinction for purposes of determining whether judicial review is available by means of certiorari under s. 18(a) or by way of review under s. 28: see Martineau, supra, at pp. 629 and 637. Since the appellants did not challenge the procedural fairness of the Minister's decision under s. 45 of the Immigration Act, 1976 by the proper procedures, I do not believe that the Court has any jurisdiction on these appeals to review those decisions or the mechanisms by which they were taken except for purposes of developing a greater understanding of the procedural scheme of the Act with respect to refugee claims.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-32", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 32", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "27. The refugee claimant's status, however, need not be conclusively determined by the Minister's decision on the advice of the Refugee Status Advisory Committee made pursuant to s. 45. Under s. 70(1) of the Act a person whose refugee claim has been refused by the Minister may, within a period prescribed in Regulation 40(1) as fifteen days from the time he is so informed, apply for a redetermination of his claim by the Immigration Appeal Board. Section 70(2) requires the refugee claimant to submit with such an application a copy of the transcript of the examination under oath which was conducted pursuant to s. 45(1) and a declaration under oath setting out the basis of the application, the facts upon which the appellant relies and the information and evidence the applicant intends to offer at a redetermination hearing. The applicant is also permitted pursuant to s. 70(2)(d) to set out in his declaration such other representations as he deems relevant to his application.\n\n28. The Immigration Appeal Board's duties in considering an application for redetermination of a refugee status claim are set out in s. 71 which reads as follows:\n\n71. (1) Where the Board receives an application referred to in subsection 70(2), it shall forthwith consider the application and if, on the basis of such consideration, it is of the opinion that there are reasonable grounds to believe that a claim could, upon the hearing of the application, be established, it shall allow the application to proceed, and in any other case it shall refuse to allow the application to proceed and shall thereupon determine that the person is not a Convention refugee.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-33", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 33", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "(2) Where pursuant to subsection (1) the Board allows an application to proceed, it shall notify the Minister of the time and place where the application is to be heard and afford the Minister a reasonable opportunity to be heard.\n\n(3) Where the Board has made its determination as to whether or not a person is a Convention refugee, it shall, in writing, inform the Minister and the applicant of its decision.\n\n(4) The Board may, and at the request of the applicant or the Minister shall, give reasons for its determination.\n\n29. If the Board were to determine pursuant to s. 71(1) that the application should be allowed to proceed, the parties are all agreed that the hearing which would take place pursuant to s. 71(2) would be a quasi‑judicial one to which full natural justice would apply. The Board is not, however, empowered by the terms of the statute to allow a redetermination hearing to proceed in every case. It may only do so if \"it is of the opinion that there are reasonable grounds to believe that a claim could, upon the hearing of the application, be established ...\". In Kwiatkowsky v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856, this Court interpreted those words as requiring the Board to allow the claim to proceed only if it is of the view that \"it is more likely than not\" that the applicant will be able to establish his claim at the hearing, following the test laid down by Urie J. in Lugano v. Minister of Manpower and Immigration, [1976] 2 F.C. 438.\n\n30. In his concurring reasons for the Federal Court of Appeal's decision in Kwiatkowsky (1980), 34 N.R. 237, Le Dain J. made the following observation about the Immigration Appeal Board's authority under s. 71(1) at p. 240:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-34", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 34", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "This is a somewhat unusual authority to determine at a preliminary stage, not whether there is an arguable case, but whether there is a probability or likelihood of success, without knowing what a full hearing might add to the strength of the case. It is an authority that gives rise to the understandable concern, but it is one that Parliament appears clearly to have conferred upon the board for reasons which it has judged sound. In effect, it is an authority to determine the issue of refugee status upon a consideration of the examination under oath and the declaration under oath.\n\n(Emphasis added.)\n\n31. I agree with these remarks. The issue directly before this Court in Kwiatkowsky was not whether there had been a denial of natural justice but whether the Immigration Appeal Board had applied the wrong test in exercising its power under s. 71(1). It is implicit in the Court's decision, however, that the Act imposes limitations on the scope of the hearing afforded to refugee claimants which it is difficult to reconcile with the principles of natural justice: see Ernewein v. Minister of Employment and Immigration, supra, at pp. 659‑60 (per Pigeon J. dissenting).\n\n32. In Alliance des Professeurs Catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 S.C.R. 140, Rinfret C.J. expressed this Court's commitment to the interpretation of statutes in accordance with the principles of natural justice in the following terms at p. 154:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-35", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 35", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "[TRANSLATION] The rule that no one should be convicted or deprived of his rights without a hearing, and especially without even being informed that his rights would be in question, is a universal rule of equity, and the silence of a statute should not be relied on as a basis for ignoring it. In my opinion, there would have to be nothing less than an express statement by the legislator for this rule to be superseded: it applies to all courts and to all bodies required to make a decision that might have the effect of destroying a right enjoyed by an individual.\n\n(Emphasis added.)\n\nIn the same case, at p. 166, Fauteux J. (as he then was) stated:\n\n[TRANSLATION] It is well established that application of the audi alteram partem rule implicitly underlies legislation giving administrative bodies functions of a judicial nature: see Maxwell, On Interpretation of Statutes, 9th ed., 368. The legislator is presumed to take this rule into consideration in enacting such statutes. For its application to be suspended, the statute must contain an express provision to this effect or an inference with equivalent effect.\n\n(Emphasis added.)\n\nIn a number of subsequent cases including Nicholson, supra, this Court has come to the same conclusion: see Pue, Natural Justice in Canada (1981), at pp. 82‑84. In the present instance, however, it seems to me that s. 71(1) is precisely the type of express provision which prevents the courts from reading the principles of natural justice into a statutory scheme for the adjudication of the rights of individuals.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-36", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 36", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "33. The substance of the appellants' case, as I understand it, is that they did not have a fair opportunity to present their refugee status claims or to know the case they had to meet. I do not think there is any basis for suggesting that the procedures set out in the Immigration Act, 1976 were not followed correctly in the adjudication of these individuals' claims. Nor do I believe that there is any basis for interpreting the relevant provisions of the Immigration Act, 1976 in a way that provides a significantly greater degree of procedural fairness or natural justice than I have set out in the preceding discussion. The Act by its terms seems to preclude this. Accordingly, if the appellants are to succeed, I believe that it must be on the basis that the Charter requires the Court to override Parliament's decision to exclude the kind of procedural fairness sought by the appellants.\n\n3. The Application of the Charter\n\n(a) Are the Appellants Entitled to the Protection of s. 7 of the Charter ?\n\n34. Section 32(1)( a ) of the Charter provides:\n\n32. (1) This Charter applies\n\n(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament...\n\nSince immigration is clearly a matter falling within the authority of Parliament under s. 91(25) of the Constitution Act, 1867 , the Immigration Act, 1976 itself and the administration of it by the Canadian government are subject to the provisions of the Charter .", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-37", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 37", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "35. Section 7 of the Charter states that \"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice\". Counsel for the appellants contrasts the use of the word \"Everyone\" in s. 7 with language used in other sections, for example, \"Every citizen of Canada\" in s. 3 , \"Every citizen of Canada and every person who has the status of a permanent resident of Canada\" in s. 6(2) and \"Citizens of Canada\" in s. 23 . He concludes that \"Everyone\" in s. 7 is intended to encompass a broader class of persons than citizens and permanent residents. Counsel for the Minister concedes that \"everyone\" is sufficiently broad to include the appellants in its compass and I am prepared to accept that the term includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.\n\n36. That premise being accepted, the question then becomes whether the rights the appellants seek to assert fall within the scope of s. 7. Counsel for the Minister does not concede this. He submits that the exclusion or removal of the appellants from Canada would not infringe \"the right to life, liberty and security of the person\". He advances three main lines of argument in support of this submission.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-38", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 38", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "37. The first may be described as a reliance on the \"single right\" theory articulated by Marceau J. in The Queen v. Operation Dismantle Inc., [1983] 1 F.C. 745 at pp. 773‑74. In counsel's submission, the words \"the right to life, liberty and security of the person\" form a single right with closely inter‑related parts and this right relates to matters of death, arrest, detention, physical liberty and physical punishment of the person. Moreover, counsel says, s. 7 only protects persons against the deprivation of that type of right if the deprivation results from a violation of the principles of fundamental justice. This argument by itself does not advance the Minister's case very far since the appellants submit that, even on this restrictive interpretation of s. 7, their rights in relation to matters of death, arrest, detention, physical liberty and physical punishment are indeed affected. Counsel for the appellants took two different approaches in their attempt to demonstrate this.\n\n38. Mr. Coveney, for the appellant Satnam Singh, and Ms. Jackman for the interveners who supported the position of the appellants, took the position that it was inherent in the definition of a Convention refugee that rejection of his right to stay in Canada would affect his right to life, liberty and security of the person in the sense articulated by counsel for the Minister. In other words, because a Convention refugee is, by definition, a person who has a \"well‑founded fear of persecution\", the refusal to give him refuge exposes him to jeopardy of death, significant diminution of his physical liberty or physical punishment in his country of origin.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-39", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 39", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "39. Mr. Scott, for the other six appellants, took a different approach. He noted that the Act empowers immigration officials physically to detain the appellants both for purposes of examination pursuant to s. 23 or s. 27 and for purposes of removal: see ss. 20(1), 23(3), 23(5), and 104 to 108. He argued that the detention of the appellants by Canadian immigration officials would itself deprive them of personal liberty in this country and it would be a violation of s. 7 to deprive them of this liberty except in accordance with the principles of fundamental justice.\n\n40. Counsel for the Minister, Mr. Bowie, sought to counter both these arguments. With respect to the first argument, he took the position that s. 7 of the Charter affords individuals protection from the action of the legislatures and governments in Canada and its provinces and territories but that it affords no protection against the acts of other persons or foreign governments. He relied on the decision of Pratte J. in Singh v. Minister of Employment and Immigration, [1983] 2 F.C. 347, who said at p. 349:\n\nThe decision of the [Immigration Appeal] Board did not have the effect of depriving the applicant of his right to life, liberty and security of the person. If the applicant is deprived of any of those rights after his return to his own country, that will be as a result of the acts of the authorities or of other persons of that country, not as a direct result of the decision of the Board. In our view, the deprivation of rights referred to in section 7 refers to a deprivation of rights by Canadian authorities applying Canadian laws.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-40", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 40", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "With respect to the second line of argument, Mr. Bowie noted that the procedures for detention and removal of individuals under the Act were no different for those claiming refugee status than they were for any other individuals and he argued that those provisions were consistent with the principles of fundamental justice.\n\n41. It seems to me that in attempting to decide whether the appellants have been deprived of the right to life, liberty and security of the person within the meaning of s. 7 of the Charter , we must begin by determining what rights the appellants have under the Immigration Act, 1976. As noted earlier, s. 5(1) of the Act excludes from persons other than those described in s. 4 the right to come into or remain in Canada. The appellants therefore do not have such a right. However, the Act does accord a Convention refugee certain rights which it does not provide to others, namely the right to a determination from the Minister based on proper principles as to whether a permit should issue entitling him to enter and remain in Canada (ss. 4(2) and 37); the right not to be returned to a country where his life or freedom would be threatened (s. 55 ); and the right to appeal a removal order or a deportation order made against him (ss. 72(2)(a), 72(2)(b) and 72(3)).", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-41", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 41", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "42. We must therefore ask ourselves whether the deprivation of these rights constitutes a deprivation of the right to life, liberty and security of the person within the meaning of s. 7 of the Charter . Even if we accept the \"single right\" theory advanced by counsel for the Minister in interpreting s. 7, I think we must recognize that the \"right\" which is articulated in s. 7 has three elements: life, liberty and security of the person. As I understand the \"single right\" theory, it is not suggested that there must be a deprivation of all three of these elements before an individual is deprived of his \"right\" under s. 7. In other words, I believe that it is consistent with the \"single right\" theory advanced by counsel to suggest that a deprivation of the appellants' \"security of the person\", for example, would constitute a deprivation of their \"right\" under s. 7, whether or not it can also be said that they have been deprived of their lives or liberty. Rather, as I understand it, the \"single right\" theory is advanced in support of a narrow construction of the words \"life\", \"liberty\" and \"security of the person\" as different aspects of a single concept rather than as separate concepts each of which must be construed independently.\n\n43. Certainly, it is true that the concepts of the right to life, the right to liberty, and the right to security of the person are capable of a broad range of meaning. The Fourteenth Amendment to the United States Constitution provides in part \". . . nor shall any State deprive any person of life, liberty, or property, without the due process of law . . . \". In Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) at p. 572, Stewart J. articulated the notion of liberty as embodied in the Fourteenth Amendment in the following way:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-42", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 42", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "\"While this Court has not attempted to define with exactness the liberty . . . guaranteed (by the Fourteenth Amendment), the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.\" Meyer v. Nebraska, 262 U.S. 390, 399. In a Constitution for a free people, there can be no doubt that the meaning of \"liberty\" must be broad indeed. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499‑500; Stanley v. Illinois, 405 U.S. 645.\n\nThe \"single right\" theory advanced by counsel for the Minister would suggest that this conception of \"liberty\" is too broad to be employed in our interpretation of s. 7 of the Charter . Even if this submission is sound, however, it seems to me that it is incumbent upon the Court to give meaning to each of the elements, life, liberty and security of the person, which make up the \"right\" contained in s. 7.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-43", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 43", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "44. To return to the facts before the Court, it will be recalled that a Convention refugee is by definition a person who has a well‑founded fear of persecution in the country from which he is fleeing. In my view, to deprive him of the avenues open to him under the Act to escape from that fear of persecution must, at the least, impair his right to life, liberty and security of the person in the narrow sense advanced by counsel for the Minister. The question, however, is whether such an impairment constitutes a \"deprivation\" under s. 7.\n\n45. It must be acknowledged, for example, that even if a Convention refugee's fear of persecution is a well‑founded one, it does not automatically follow that he will be deprived of his life or his liberty if he is returned to his homeland. Can it be said that Canadian officials have deprived a Convention refugee of his right to life, liberty and security of the person if he is wrongfully returned to a country where death, imprisonment or another form of persecution may await him? There may be some merit in counsel's submission that closing off the avenues of escape provided by the Act does not per se deprive a Convention refugee of the right to life or to liberty. It may result in his being deprived of life or liberty by others, but it is not certain that this will happen.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-44", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 44", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "46. I cannot, however, accept the submission of counsel for the Minister that the denial of the rights possessed by a Convention refugee under the Act does not constitute a deprivation of his security of the person. Like \"liberty\", the phrase \"security of the person\" is capable of a broad range of meaning. The phrase \"security of the person\" is found in s. 1(a) of the Canadian Bill of Rights and its interpretation in that context might have assisted us in its proper interpretation under the Charter . Unfortunately no clear meaning of the words emerges from the case law, although the phrase has received some mention in cases such as Morgentaler v. The Queen, [1976] 1 S.C.R. 616, at pp. 628‑34 (per Laskin C.J. dissenting); Curr v. The Queen, [1972] S.C.R. 889; and R. v. Berrie (1975), 24 C.C.C. (2d) 66, at p. 70. The Law Reform Commission, in its Working Paper No. 26, Medical Treatment and Criminal Law (1980), suggested at p. 6 that:\n\nThe right to security of the person means not only protection of one's physical integrity, but the provision of necessaries for its support.\n\nThe Commission went on to describe the provision of necessaries in terms of art. 25, para. 1 of the Universal Declaration of Human Rights (1948) which reads:\n\nEvery one has the right to a standard of living adequate for the health and well‑being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-45", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 45", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "Commentators have advocated the adoption of a similarly broad conception of \"security of the person\" in the interpretation of s. 7 of the Charter : see Garant, \"Fundamental Freedoms and Natural Justice\", in Tarnopolsky and Beaudoin (eds.) The Canadian Charter of Rights and Freedoms (1982), at pp. 264‑65, 271‑74; Manning, Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982 (1983), at pp. 249‑54.\n\n47. For purposes of the present appeal it is not necessary, in my opinion, to consider whether such an expansive approach to \"security of the person\" in s. 7 of the Charter should be taken. It seems to me that even if one adopts the narrow approach advocated by counsel for the Minister, \"security of the person\" must encompass freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself. I note particularly that a Convention refugee has the right under s. 55 of the Act no to \"...be removed from Canada to a country where his life or freedom would be threatened...\". In my view, the denial of such a right must amount to a deprivation of security of the person within the meaning of s. 7.\n\n48. This approach receives support from at least one lower court decision applying s. 7 of the Charter . In Collin v. Lussier, [1983] 1 F.C. 218 (later dismissed on appeal [1985] 1 F.C. 124), the applicant before the Trial Division of the Federal Court applied for certiorari to quash a decision made by the respondent to have him transferred from a medium security to a maximum security prison. He argued that the transfer endangered his \"security of the person\" and since it was not made in accordance with the principles of fundamental justice, his rights under s. 7 had been infringed. At page 239, Décary J. stated:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-46", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 46", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": ". . . such detention, by increasing the applicant's anxiety as to his state of health, is likely to make his illness worse and, by depriving him of access to adequate medical care, it is in fact an impairment of the security of his person.\n\nIt is noteworthy that the applicant had not demonstrated that his health had been impaired; he merely showed that it was likely that his health would be impaired. This was held to be sufficient to constitute a deprivation of the right to security of the person under the circumstances.\n\n49. It must be recognized that the appellants are not at this stage entitled to assert rights as Convention refugees; their claim is that they are entitled to fundamental justice in the determination of whether they are Convention refugees or not. From some of the cases dealing with the application of the Canadian Bill of Rights to the determination of the rights of individuals under immigration legislation it might be suggested that whatever procedures the legislation itself sets out for the determination of rights constitute \"due process\" for purposes of s. 1(a) and \"fundamental justice\" for purposes of s. 2(e) of the Canadian Bill of Rights: see Prata v. Minister of Manpower and Immigration, supra, at p. 383; Rebrin v. Bird and Minister of Citizenship and Immigration, [1961] S.C.R. 376, at pp. 381‑83; Louie Yuet Sun v. The Queen, [1961] S.C.R. 70; Cf. U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), at p. 544. As Professor Tarnopolsky (as he then was) observed in his text The Canadian Bill of Rights (2nd ed. 1975) at p. 273:\n\nThe courts have consistently held that immigration is a privilege, and not a right.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-47", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 47", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "50. The creation of a dichotomy between privileges and rights played a significant role in narrowing the scope of the application of the Canadian Bill of Rights, as is apparent from the judgment of Martland J. in Mitchell v. The Queen, [1976] 2 S.C.R. 570. At page 588 Martland J. said:\n\nThe appellant also relies upon s. 2(e) of the Bill of Rights, which provides that no law of Canada shall be construed or applied so as to deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. In the McCaud case [[1965] 1 C.C.C. 168] Spence J., whose view was adopted unanimously on appeal, held that the provisions of s. 2(e) do not apply to the question of the revocation of parole under the provisions of the Parole Act.\n\nThe appellant had no right to parole. He was granted parole as a matter of discretion by the Parole Board. He had no right to remain on parole. His parole was subject to revocation at the absolute discretion of the Board.\n\nI do not think this kind of analysis is acceptable in relation to the Charter . It seems to me rather that the recent adoption of the Charter by Parliament and nine of the ten provinces as part of the Canadian constitutional framework has sent a clear message to the courts that the restrictive attitude which at times characterized their approach to the Canadian Bill of Rights ought to be re‑examined. I am accordingly of the view that the approach taken by Laskin C.J. dissenting in Mitchell is to be preferred to that of the majority as we examine the question whether the Charter has any application to the adjudication of rights granted to an individual by statute.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-48", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 48", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "51. In Mitchell the issue was whether the Canadian Bill of Rights required s. 16(1) of the Parole Act to be interpreted so as to require the Parole Board to provide a parolee with a fair hearing before revoking his parole. Laskin C.J. focussed on the consequences of the revocation of parole for the individual and concluded that parole could not be characterized as a \"mere privilege\" even although the parolee had no absolute right to be released from prison. He said at p. 585:\n\nBetween them, s. 2(c)(i) and s. 2(e) [of the Canadian Bill of Rights] call for at least minimum procedural safeguards in parole administration where revocation is involved, despite what may be said about the confidentiality and sensitiveness of the parole system.\n\n52. It seems to me that the appellants in this case have an even stronger argument to make than the appellant in Mitchell. At most Mr. Mitchell was entitled to a hearing from the Parole Board concerning the revocation of his parole and a decision from the Board based on proper considerations as to whether to continue his parole or not. He had no statutory right to the parole itself; rather he had a right to proper consideration of whether he was entitled to remain on parole. By way of contrast, if the appellants had been found to be Convention refugees as defined in s. 2(1) of the Immigration Act, 1976 they would have been entitled as a matter of law to the incidents of that status provided for in the Act. Given the potential consequences for the appellants of a denial of that status if they are in fact persons with a \"well‑founded fear of persecution\", it seems to me unthinkable that the Charter would not apply to entitle them to fundamental justice in the adjudication of their status.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-49", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 49", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "53. Given this conclusion, it is perhaps unnecessary to address Mr. Scott's line of argument in detail. I must, however, acknowledge some reluctance to adopt his analogy from American law that persons who are inside the country are entitled to the protection of the Charter while those who are merely seeking entry to the country are not. In the first place, it should be noted that the presence in this country of four of the appellants who were refused entry when they arrived in Canada is due only to the fact that the Act provides for a mechanism for their release from detention. As Ms. Jackman pointed out, a rule which provided Charter protection to refugees who succeeded in entering the country but not to those who were seeking admission at a port of entry would be to reward those who sought to evade the operation of our immigration laws over those who presented their cases openly at the first available opportunity.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-50", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 50", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "54. An equally serious objection, it seems to me, is that the American rule does not differentiate between the special status statutorily accorded to Convention refugees who are present in this country and the status of other individuals who are seeking to enter or remain in Canada. As I understand the American law, the constitutional protection of the Fifth and Fourteenth Amendments has long been available to aliens whom the government is seeking to remove from the United States (The Japanese Immigrant Case, 189 U.S. 86 (1903)) but such protection is not available to those seeking entry which the government has decided to refuse (U.S. ex. rel. Knauff v. Shaughnessy, supra). The rationale of this distinction as articulated in Knauff and more fully in Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953) at p. 210, is that \"Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control\". Seen in this sense, the deference which American courts have shown to the political branches of government in the field of immigration has been described as one aspect of the political questions doctrine: see Scharpf, \"Judicial Review and the Political Question: A Functional Analysis\" (1966), 75 Yale L.J. 517, at pp. 578‑83.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-51", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 51", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "55. Two observations about this approach will suffice for present purposes. The first is that recently the United States Supreme Court has been more reluctant to employ the political questions doctrine to provide the executive and legislative branches of government with an unreviewable authority over the regulation of aliens: see Immigration and Naturalization Service v. Chadha, 77 L Ed 2d 317 (1983), at pp. 338‑40 (per Burger C.J.) Second, and more importantly, it seems to me that in the Canadian context Parliament has in the Immigration Act, 1976 made many of the \"political\" determinations which American courts have been justifiably reluctant to attempt to get involved in themselves. On these appeals this Court is being asked by the appellants to accept that the substantive rights of Convention refugees have been determined by the Immigration Act, 1976 itself and the Court need concern itself only with the question whether the procedural scheme set up by the Act for the determination of that status is consistent with the requirements of fundamental justice articulated in s. 7 of the Charter . I see no reason why the Court should limit itself in this inquiry or establish distinctions between classes of refugee claimants which are not mandated by the Act itself. It is unnecessary for the Court to consider what it would do if it were asked to engage in a larger inquiry into the substantive rights conferred in the Act.\n\n56. In summary, I am of the view that the rights which the appellants are seeking to assert are ones which entitle them to the protection of s. 7 of the Charter . It is necessary therefore to consider whether the procedures for the determination of refugee status as set out in the Act accord with fundamental justice.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-52", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 52", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "(b) Is Fundamental Justice Denied by the Procedures for the Determination of Convention Refugee Status set out in the Act?\n\n57. All counsel were agreed that at a minimum the concept of \"fundamental justice\" as it appears in s. 7 of the Charter includes the notion of procedural fairness articulated by Fauteux C.J. in Duke v. The Queen, [1972] S.C.R. 917. At page 923 he said:\n\nUnder s. 2(e) of the Bill of Rights no law of Canada shall be construed or applied so as to deprive him of \"a fair hearing in accordance with the principles of fundamental justice\". Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-53", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 53", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "58. Do the procedures set out in the Act for the adjudication of refugee status claims meet this test of procedural fairness? Do they provide an adequate opportunity for a refugee claimant to state his case and know the case he has to meet? This seems to be the question we have to answer and, in approaching it, I am prepared to accept Mr. Bowie's submission that procedural fairness may demand different things in different contexts: see Martineau, supra, at p. 630. Thus it is possible that an oral hearing before the decision‑maker is not required in every case in which s. 7 of the Charter is called into play. However, I must confess to some difficulty in reconciling Mr. Bowie's argument that an oral hearing is not required in the context of this case with the interpretation he seeks to put on s. 7. If \"the right to life, liberty and security of the person\" is properly construed as relating only to matters such as death, physical liberty and physical punishment, it would seem on the surface at least that these are matters of such fundamental importance that procedural fairness would invariably require an oral hearing. I am prepared, nevertheless, to accept for present purposes that written submissions may be an adequate substitute for an oral hearing in appropriate circumstances.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-54", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 54", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "59. I should note, however, that even if hearings based on written submissions are consistent with the principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person: see Stein v. The Ship \"Kathy K\", [1976] 2 S.C.R. 802, at pp. 806‑08 (per Ritchie J.) I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-55", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 55", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "60. As I have suggested, the absence of an oral hearing need not be inconsistent with fundamental justice in every case. My greatest concern about the procedural scheme envisaged by ss. 45 to 48 and 70 and 71 of the Immigration Act, 1976 is not, therefore, with the absence of an oral hearing in and of itself, but with the inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the case he has to meet. Mr. Bowie argued that since the procedure under s. 45 was an administrative one, it was quite proper for the Minister and the Refugee Status Advisory Committee to take into account policy considerations and information about world affairs to which the refugee claimant had no opportunity to respond. However, in my view the proceedings before the Immigration Appeal Board were quasi‑judicial and the Board was not entitled to rely on material outside the record which the refugee claimant himself submitted on his application for redetermination: see Permaul v. Minister of Employment and Immigration (unreported judgment of the Federal Court of Appeal, No. A‑576‑83, dated November 24, 1983); Saraos v. Minister of Employment and Immigration, [1982] 1 F.C. 304, at pp. 308‑09. Mr. Bowie submitted that there was no case against the refugee claimant at that stage; it was merely his responsibility to make a written submission which demonstrated on the balance of probabilities that he would be able to establish his claim at a hearing. If the applicant failed to bring forward the requisite facts his claim would not be allowed to proceed, but there was nothing fundamentally unfair in this procedure.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-56", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 56", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "61. It seems to me that the basic flaw in Mr. Bowie's characterization of the procedure under ss. 70 and 71 is his description of the procedure as non‑adversarial. It is in fact highly adversarial but the adversary, the Minister, is waiting in the wings. What the Board has before it is a determination by the Minister based in part on information and policies to which the applicant has no means of access that the applicant for redetermination is not a Convention refugee. The applicant is entitled to submit whatever relevant material he wishes to the Board but he still faces the hurdle of having to establish to the Board that on the balance of probabilities the Minister was wrong. Moreover, he must do this without any knowledge of the Minister's case beyond the rudimentary reasons which the Minister has decided to give him in rejecting his claim. It is this aspect of the procedures set out in the Act which I find impossible to reconcile with the requirements of \"fundamental justice\" as set out in s. 7 of the Charter .", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-57", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 57", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "62. It is perhaps worth noting that if the Immigration Appeal Board allows a redetermination hearing to proceed pursuant to s. 71(1), the Minister is entitled pursuant to s. 71(2) to notice of the time and place of the hearing and a reasonable opportunity to be heard. It seems to me that, as a matter of fundamental justice, a refugee claimant would be entitled to discovery of the Minister's case prior to such a hearing. It must be acknowledged, of course, that some of the information upon which the Minister's case would be based might be subject to Crown privilege. But the courts are well able to give the applicant relief if the Minister attempts to make an overly broad assertion of privilege: see Canada Evidence Act, 1980‑81‑82‑83 (Can.), c. 111, Schedule III, s. 36.1.\n\n63. Under the Act as it presently stands, however, a refugee claimant may never have the opportunity to make an effective challenge to the information or policies which underlie the Minister's decision to reject his claim. Because s. 71(1) requires the Immigration Appeal Board to reject an application for redetermination unless it is of the view that it is more likely than not that the applicant will be able to succeed, it is apparent that an application will usually be rejected before the refugee claimant has had an opportunity to discover the Minister's case against him in the context of a hearing. Indeed, given the fact that s. 71(1) resolves any doubt as to whether or not there should be a hearing against the refugee claimant, I find it difficult to see how a successful challenge to the accuracy of the undisclosed information upon which the Minister's decision is based could ever be launched.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-58", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 58", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "64. I am accordingly of the view that the procedures for determination of refugee status claims as set out in the Immigration Act, 1976 do not accord refugee claimants fundamental justice in the adjudication of those claims and are thus incompatible with s. 7 of the Charter . It is therefore necessary to go forward to the third stage of the inquiry and determine whether the shortcomings of these procedures in relation to the standards set out by s. 7 constitute reasonable limits which can be demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter .\n\n(c) Can the Procedures be Saved under s. 1 of the Charter ?\n\n65. Section 1 of the Charter reads:\n\n1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.\n\nIt follows, accordingly, that if the limitations on the rights set out in the Charter meet the test articulated in s. 1 , the Charter has not been violated and the Court's remedial powers thereunder are not called into play.\n\n66. The question of the standards which the Court should use in applying s. 1 is, without a doubt, a question of enormous significance for the operation of the Charter . If too low a threshold is set, the courts run the risk of emasculating the Charter . If too high a threshold is set, the courts run the risk of unjustifiably restricting government action. It is not a task to be entered upon lightly.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-59", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 59", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "67. Unfortunately, counsel devoted relatively little time in the course of argument to the principles the Court should espouse in applying s. 1. This is certainly understandable given the complexity of the other issues which are in one sense preliminary to the application of s. 1. It is nevertheless to be regretted. A particular disappointment is the limited scope of the factual material brought forward by the respondent in support of the proposition that the Immigration Act's provisions constitute a \"reasonable limit\" on the appellants' rights. It must be acknowledged that counsel operated under considerable time pressure in the preparation of these appeals and I do not intend these remarks as a criticism of the presentation made to the Court by counsel which was, indeed, extremely valuable. On the other hand, I feel constrained to echo the observations made by Estey J. in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 at p. 384, where he said:\n\nAs experience accumulates, the law profession and the courts will develop standards and practices which will enable the parties to demonstrate their position under s. 1 and the courts to decide issues arising under that provision. May it only be said here, in the cause of being helpful to those who come forward in similar proceedings, that the record on the s. 1 issue was indeed minimal, and without more, would have made it difficult for a court to determine the issue as to whether a reasonable limit on a prescribed right had been demonstrably justified.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-60", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 60", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "68. Mr. Bowie's submissions on behalf of the Minister with respect to s. 1 were that Canadian procedures with respect to the adjudication of refugee claims had received the approbation of the office of the United Nations High Commissioner for Refugees and that it was not uncommon in Commonwealth and Western European countries for refugee claims to be adjudicated administratively without a right to appeal. He further argued that the Immigration Appeal Board was already subjected to a considerable strain in terms of the volume of cases which it was required to hear and that a requirement of an oral hearing in every case where an application for redetermination of a refugee claim has been made would constitute an unreasonable burden on the Board's resources.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-61", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 61", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "69. One or two comments are in order respecting this approach to s. 1. It seems to me that it is important to bear in mind that the rights and freedoms set out in the Charter are fundamental to the political structure of Canada and are guaranteed by the Charter as part of the supreme law of our nation. I think that in determining whether a particular limitation is a reasonable limit prescribed by law which can be \"demonstrably justified in a free and democratic society\" it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter . The issue in the present case is not simply whether the procedures set out in the Immigration Act, 1976 for the adjudication of refugee claims are reasonable; it is whether it is reasonable to deprive the appellants of the right to life, liberty and security of the person by adopting a system for the adjudication of refugee status claims which does not accord with the principles of fundamental justice.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-62", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 62", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "70. Seen in this light I have considerable doubt that the type of utilitarian consideration brought forward by Mr. Bowie can constitute a justification for a limitation on the rights set out in the Charter . Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1. The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s. 7, implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles. Whatever standard of review eventually emerges under s. 1, it seems to me that the basis of the justification for the limitation of rights under s. 7 must be more compelling than any advanced in these appeals.\n\n71. Moreover, I am not convinced in light of the submissions made by the appellants that the limitations on the rights of refugee claimants which are imposed by the adjudication procedures of the Immigration Act, 1976 are reasonable even on the respondent's own terms. It is obvious that there is a considerable degree of dissatisfaction with the present system even on the part of those who administer it. In an address given in Toronto on October 25, 1980, Janet Scott, Q.C., the Chairman of the Immigration Appeal Board made the following remarks:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-63", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 63", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "There is no blinking at the fact that the sections dealing with the Board's jurisdiction in refugee redetermination are highly unsatisfactory. Leaving aside any consideration of natural justice, the system is extremely cumbersome, and when we enter into the sphere of natural justice, open to criticism as unjust.\n\n72. In September 1980 the Minister of Employment and Immigration established a Task Force on Immigration Practices and Procedures and in November 1981 the Task Force issued a report entitled The Refugee Status Determination Process. The Task Force recommended wholesale changes in the procedures employed in the determination of refugee claims, including a recommendation that \"A refugee claimant should be entitled to a hearing in every case where the [Refugee Status Advisory Committee] is not prepared to make a positive recommendation on the basis of the transcript\" (Report p. xvi). In its conclusion, the Task Force discussed the impact of its recommendation that an oral hearing be given in each case. At page 103 the Report states:\n\nIn the end, then, the question is one of resources. Would the additional expenditures be warranted? How does one do a cost‑benefit analysis where the \"benefit\" is to be found in vague concepts, such as \"fairness\" and \"justice\"? One approach may be to canvass other forms of adjudication by federal tribunals and compare the significance of their decisions and the kinds of hearings which they offer with those of the refugee determination process. Without referring to specific bodies or in any way denigrating the importance of their work, the impact of their decisions often pales in comparison to refugee determination. Yet they generally offer far more in the way of procedural fairness.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-64", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 64", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "73. Even if the cost of compliance with fundamental justice is a factor to which the courts would give considerable weight, I am not satisfied that the Minister has demonstrated that this cost would be so prohibitive as to constitute a justification within the meaning of s. 1. Though it is tempting to make observations about what factors might give rise to justification under s. 1, and on the standards of review which should be applied with respect to s. 1, I think it would be unwise to do so. I therefore confine my observations on the application of s. 1 to those necessary for the disposition of the appeals.\n\n74. To recapitulate, I am persuaded that the appellants are entitled to assert the protection of s. 7 of the Charter in the determination of their claims to Convention refugee status under the Immigration Act, 1976. I am further persuaded that the procedures under the Act as they were applied in these cases do not meet the requirements of fundamental justice under s. 7 and that accordingly the appellants' rights under s. 7 were violated. Finally, I believe that the respondent has failed to demonstrate that the procedures set out in the Act constitute a reasonable limit on the appellants' rights within the meaning of s. 1 of the Charter . I would accordingly allow the appeals. In so doing I should, however, observe that the acceptance of certain submissions, particularly concerning the scope of s. 7 of the Charter in the context of these appeals, is not intended to be definitive of the scope of the section in other contexts. I do not by any means foreclose the possibility that s. 7 protects a wider range of interests than those involved in these appeals.\n\n4. Remedies", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-65", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 65", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "75. I turn now to the issue of the remedy to which the appellants are entitled. Sections 24(1) of the Charter and 52(1) of the Constitution Act, 1982 both apply. Section 52(1) requires a declaration that s. 71(1) of the Immigration Act, 1976 is of no force and effect to the extent it is inconsistent with s. 7. The appellants who have suffered as a result of the application of an unconstitutional law to them are entitled under s. 24(1) to apply to a court of competent jurisdiction for \"such remedy as the court considers appropriate and just in the circumstances\". What remedy is available in the context of this case?\n\n76. The Court's jurisdiction is invoked in two contexts. In the first, these are appeals from dismissals by the Federal Court of Appeal of applications for judicial review under s. 28 of the Federal Court Act. In this context the Court is limited to the powers the Federal Court is entitled to exercise pursuant to s. 28. In the other context, however, the Court's broad remedial powers under s. 24 of the Charter are invoked.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-66", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 66", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "77. The significance of the limitation of the Court's judicial review power under s. 28 of the Federal Court Act is apparent from the decision of Urie J. in Brempong v. Minister of Employment and Immigration, supra. In that case, Urie J. observed that s. 28 provided the Federal Court of Appeal with supervisory powers only over decisions made on a \"judicial or quasi‑judicial basis\" and that accordingly the Court had no jurisdiction to review what he characterized as an \"administrative\" decision by the Minister under s. 45 of the Immigration Act, 1976. The Board is a quasi‑judicial body and without doubt its determinations are subject to review under s. 28. The question the Court faces, as I see it, is whether the broader remedial power which it possesses under s. 24(1) of the Charter entitles it to extend its review of possible violations of the Charter to the Ministerial determinations made pursuant to s. 45 of the Immigration Act, 1976. In my view it does not.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-67", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 67", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "78. Section 24(1) of the Charter provides remedial powers to \"a court of competent jurisdiction\". As I understand this phrase, it premises the existence of jurisdiction from a source external to the Charter itself. This Court certainly has jurisdiction to review the decisions of the Immigration Appeal Board in these cases pursuant to s. 28 of the Federal Court Act. If the appeals originated as petitions for certiorari brought in the Trial Division of the Federal Court pursuant to s. 18 of the Federal Court Act, the Ministerial decisions made pursuant to s. 45 of the Immigration Act, 1976 would be subject to review. In my view, however, any violations of the Charter which arose out of Ministerial decisions under s. 45 are not subject to review on these appeals because of the judicial limitations on the Federal Court of Appeal under s. 28 of the Federal Court Act. I would accordingly make no observations with respect to them or with respect to the question of whether or to what extent s. 45 of the Immigration Act, 1976 is of no force and effect as a result of any inconsistency with the Charter .", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-68", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 68", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "79. Confining myself to the decisions of the Immigration Appeal Board which are under review, I would allow the appeals, set aside the decisions of the Federal Court of Appeal and of the Immigration Appeal Board and remand all seven cases for a hearing on the merits by the Board in accordance with the principles of fundamental justice articulated above. Since s. 71(1) of the Immigration Act, 1976 which restricts the Board's power to allow hearings to proceed to cases in which it is of the opinion that the applicant for redetermination is more likely than not to succeed upon a hearing of his claim, is inconsistent with the principles of fundamental justice set out in s. 7 of the Charter , the appellants are also entitled to a declaration that s. 71(1) is of no force and effect to the extent of the inconsistency.\n\n80. I would award costs on the application for leave to appeal and costs of the appeal to this Court to Mr. Satnam Singh on a solicitor‑client basis. Costs in respect of the other six appellants shall be as prescribed by the Order of this Court dated February 16, 1984.\n\nThe reasons of Beetz, Estey and McIntyre were delivered by\n\n81. Beetz J.‑‑The main issue which was argued when these appeals were heard on April 30 and May 1, 1984, was whether the procedures set out in the Immigration Act, 1976, 1976‑77 (Can.), c. 52 as amended, for the adjudication of the claims of persons claiming refugee status in Canada, deny such claimants rights they are entitled to assert under s. 7 of the Canadian Charter of Rights and Freedoms . No submissions were made at that time as to the possible application of the Canadian Bill of Rights to these appeals.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-69", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 69", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "82. On December 7, 1984, the Deputy Registrar wrote to counsel to inform them that the members of the Court would like to have their submissions in writing on the application of the Canadian Bill of Rights. Counsel for all the parties and the interveners complied and counsel for the appellants replied, also in writing.\n\n83. Like my colleague, Madame Justice Wilson, whose reasons for judgment I have had the advantage of reading, I conclude that these appeals ought to be allowed. But I do so on the basis of the Canadian Bill of Rights. I refrain from expressing any views on the question whether the Canadian Charter of Rights and Freedoms is applicable at all to the circumstances of these cases and more particularly, on the important question whether the Charter affords any protection against a deprivation or the threat of a deprivation of the right to life, liberty or security of the person by foreign governments.\n\n84. Section 26 of the Canadian Charter of Rights and Freedoms should be kept in mind. It provides:\n\n26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.\n\n85. Thus, the Canadian Bill of Rights retains all its force and effect, together with the various provincial charters of rights. Because these constitutional or quasi‑constitutional instruments are drafted differently, they are susceptible of producing cumulative effects for the better protection of rights and freedoms. But this beneficial result will be lost if these instruments fall into neglect. It is particularly so where they contain provisions not to be found in the Canadian Charter of Rights and Freedoms and almost tailor‑made for certain factual situations such as those in the cases at bar.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-70", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 70", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "86. I refer to my colleague's account of the facts, the procedural history of the seven appeals and generally, to her quotation of the relevant provisions of the Immigration Act, 1976, and her description of the scheme of the Act.\n\n87. The main issue, as I see it, is whether the procedures followed in these cases for the determination of Convention refugee status are in conflict with the Canadian Bill of Rights and more particularly with s. 2(e) thereof.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-71", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 71", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "88. In order to understand the scheme of the Immigration Act, 1976 it is necessary to refer to all the procedures for determination of whether an individual is a Convention refugee, including initial determination under ss. 45 to 48 of the Act and redetermination by the Immigration Appeal Board, under ss. 70 and 71. It should be emphasized however that, in these appeals, we are directly concerned only with redetermination made by the Immigration Appeal Board pursuant to s. 71(1) of the Immigration Act, 1976, whereby the Board ordered that the applications for redetermination of the claims be not allowed to proceed and determined that the applicants were not Convention refugees. The appellants have unsuccessfully applied to the Federal Court of Appeal pursuant to s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to have these orders reviewed and set aside. But the advice given by the Refugee Status Advisory Committee and the initial determinations made by the Minister pursuant to s. 45 of the Act have not been attacked and are not subject to review in these appeals from the decisions of the Federal Court of Appeal. I stress this because several submissions were made to us relating to alleged procedural shortcomings at the initial determination stage and relating as well to various means to remedy those shortcomings. Such remedies, whatever their merit, would not help the present appellants who have passed the initial determination stage. And, in any event, in an appeal from a decision of the Federal Court of Appeal on a s. 28 application to review, our jurisdiction, if we allow the appeal, is limited to rendering the decision which the Federal Court of Appeal ought to have rendered.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-72", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 72", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "89. As I said earlier, the relevant provision of the Canadian Bill of Rights is s. 2(e) but it will also be convenient to quote s. 1:\n\n1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,\n\n(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;\n\n(b) the right of the individual to equality before the law and the protection of the law;\n\n(c) freedom of religion;\n\n(d) freedom of speech;\n\n(e) freedom of assembly and association, and\n\n(f) freedom of the press.\n\n2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it should operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to\n\n...\n\n(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.\n\n90. The main submissions made by Mr. Scott, of counsel for the first six appellants, are to a substantial extent supported by Mr. Coveney, of counsel for the seventh appellant, who took a slightly different approach. They read as follows:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-73", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 73", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "2. The Appellants submit that either section 45 or 71 of the Immigration Act abrogates the right guaranteed by section 2(e) of the Bill of Rights, unless one of those sections is construed as requiring a full hearing before the Refugee Status Advisory Committee (RSAC), the Minister, or the Immigration Appeal Board, which hearings have not been held in any of these 6 cases.\n\n3. The Appellants submit that two points must be established in order to show that a breach of section 2(e) has occurred:\n\n1. that the Appellants' \"rights and obligations\" fall to be \"determined\" by the RSAC, the Minister and the Immigration Appeal Board; and\n\n2. that the Appellants were not afforded a \"fair hearing in accordance with the principles of fundamental justice\" by any of these statutory authorities.\n\n91. Mr. Scott then gives what seems to me an accurate summary of the legal rights given to Convention refugees in Canada by the Immigration Act, 1976 and Regulations:\n\n1. the \"right to remain in Canada\" if a Minister's Permit is obtained; or\n\nImmigration Act, s. 4(2).\n\n2. if a Minister's Permit cannot be obtained, then:\n\n(a) the right not to be removed to a country where life or freedom is threatened;\n\nImmigration Act, s. 55.\n\n(b) if removed from Canada, the right to re‑enter if a safe country cannot be found; and\n\nImmigration Act, s. 14(1)(c).\n\n(c) the right to be considered under the criteria provided in the Regulations, for \"employment authorization\" while residing in Canada.\n\nRegulations, s. 19(3)(k), 20.\n\n92. Mr. Scott then concludes on this first branch of his submission:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-74", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 74", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "10. It is submitted that because Convention refugees enjoy these rights under Canadian law, a person who applies for refugee status under section 45 or 70 of the Act meets the first requirement for claiming the protection of \"fundamental justice\" under section 2(e) of the Bill of Rights, namely, that a law of Canada provides a procedure \"for the determination of his rights\".\n\n93. In his written submissions, Mr. Bowie, of counsel for the Attorney General of Canada, makes a concession in the following terms:\n\n2. The Attorney General of Canada does not dispute that the process of determining and redetermining refugee claims involves the determination of rights and obligations of the refugee claimants. It is only in that respect that his submissions with respect to section 2(e) of the Bill of Rights differ from his submissions with respect to section 7 of the Canadian Charter of Rights and Freedoms . It was submitted upon the hearing of these appeals that a denial of a claim to refugee status by the operation of Canadian law does not deprive the claimant of \"the right to life, liberty and security of the person\" guaranteed by section 7 of the Charter .\n\n94. In his reply, Mr. Scott refers to the Attorney General's acknowledgment that the process of adjudicating refugee claims under the Immigration Act, 1976 involves the determination of \"rights and obligations\". Mr. Scott then concludes:\n\nThe remaining issue, therefore, is whether the procedures provided by the Act conform to the dictates of \"fundamental justice\".", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-75", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 75", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "95. In view of the last sentence in the Attorney General's acknowledgment quoted above, I am not absolutely clear whether or not it was conceded by the Attorney General that the \"rights\" referred to in s. 2(e) of the Canadian Bill of Rights are not the same rights or rights of the same nature as those which are enumerated in s. 1, including \"the right of the individual to life, liberty, security of the person... and the right not to be deprived thereof except by due process of law\".\n\n96. Be that as it may, it seems clear to me that the ambit of s. 2(e) is broader than the list of rights enumerated in s. 1 which are designated as \"human rights and fundamental freedoms\" whereas in s. 2(e), what is protected by the right to a fair hearing is the determination of one's \"rights and obligations\", whatever they are and whenever the determination process is one which comes under the legislative authority of the Parliament of Canada. It is true that the first part of s. 2 refers to \"the rights or freedoms herein recognized and declared\", but s. 2(e) does protect a right which is fundamental, namely \"the right to a fair hearing in accordance with the principles of fundamental justice\" for the determination of one's rights and obligations, fundamental or not. It is my view that, as was submitted by Mr. Coveney, it is possible to apply s. 2(e) without making reference to s. 1 and that the right guaranteed by s. 2(e) is in no way qualified by the \"due process\" concept mentioned in s. 1(a).", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-76", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 76", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "97. Accordingly, the process of determining and redetermining appellants' refugee claims involves the determination of rights and obligations for which the appellants have, under s. 2(e) of the Canadian Bill of Rights, the right to a fair hearing in accordance with the principles of fundamental justice. It follows also that this case is distinguishable from cases where a mere privilege was refused or revoked, such as Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, and Mitchell v. The Queen, [1976] 2 S.C.R. 570.\n\n98. I therefore agree with the first branch of Mr. Scott's submission.\n\n99. What remains to be decided is whether in the cases at bar, the appellants were afforded \"a fair hearing in accordance with the principles of fundamental justice\".\n\n100. I have no doubt that they were not.\n\n101. What the appellants are mainly justified of complaining about in my view is that their claims to refugee status have been finally denied without their having been afforded a full oral hearing at a single stage of the proceedings before any of the bodies or officials empowered to adjudicate upon their claim on the merits. They have actually been heard by the one official who has nothing to say in the matter, a senior immigration officer. But they have been heard neither by the Refugee Status Advisory Committee, who could advise the Minister, neither by the Minister, who had the power to decide and who dismissed their claim, nor by the Immigration Appeal Board which did not allow their application to proceed and which determined, finally, that they are not Convention refugees.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-77", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 77", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "102. I do not wish to suggest that the principles of fundamental justice will impose an oral hearing in all cases. In Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, at p. 747, Estey J. speaking for the Court quoted Tucker L.J. in Russell v. Duke of Norfolk, [1949] 1 All E.R. 109 (C.A.), at p. 118:\n\nThe requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject‑matter that is being dealt with, and so forth.\n\n103. The most important factors in determining the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned. In the same Inuit Tapirisat case, at the same page, Estey J. also quoted Lord Denning, M.R., in Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), at p. 19:\n\n. . . that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it.\n\n104. In the cases at bar, the seven appellants have stated under oath the reasons for which they claim to be Convention refugees. A \"Convention refugee\" is defined in s. 2(1) of the Immigration Act, 1976:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-78", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 78", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "\"Convention refugee\" means any persons who, by reason of a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,\n\n(a) is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to avail himself of the protection of that country, or\n\n(b) not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country;\n\n105. The Immigration Act, 1976 gives convention refugees the right to \"remain\" in Canada, or, if a Minister's Permit cannot be obtained, at least the right not to be removed to a country where life and freedom is threatened, and to re‑enter Canada if no safe country is willing to accept them. The rights at issue in these cases are accordingly of vital importance for those concerned.\n\n106. The first six appellants make the following submissions:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-79", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 79", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "18. In the Appellants' submission the fact that the threat to life or freedom or physical security comes from a foreign state in refugee cases is irrelevant to the legal issue now before this Court under the Canadian Bill of Rights. In considering the application of section 7 of the Charter in these cases, it may be that the locus of the threat to life or liberty or security of the person is relevant, because in order to claim the protection of \"fundamental justice\" under the Charter , the Appellants must establish an infringement of the right to life or liberty or security of the person as guaranteed by section 7. Presumably, only a Canadian government can breach the Charter of Rights and Freedoms, including section 7. For this reason, at the hearing before this Court, the Appellants put their Charter case on the basis that the government of Canada infringed their liberty by arresting them and detaining them until \"removal\" from Canada could be effected.\n\n19. Under section 2(e) of the Bill of Rights, however, the Appellants need not show that the Canadian government deprives them of their life, liberty or physical security. Rather, they need only show that their \"rights\" fall to be \"determined\" by federal law. In construing and applying the Immigration Act according to the terms of section 2(e) of the Bill of Rights therefore, threats to life or liberty by a foreign power are relevant ...", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-80", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 80", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "107. Again, I express no views as to the applicability of the Canadian Charter of Rights and Freedoms , but I otherwise agree with these submissions: threats to life or liberty by a foreign power are relevant, not with respect to the applicability of the Canadian Bill of Rights, but with respect to the type of hearing which is warranted in the circumstances. In my opinion, nothing will pass muster short of at least one full oral hearing before adjudication on the merits.\n\n108. There are additional reasons why the appellants ought to have been given an oral hearing. They are mentioned in the following submission with which I agree:\n\nThe Appellants submit that although \"fundamental justice\" will not require an oral hearing in every case, where life or liberty may depend on findings of fact and credibility, and it may in these cases, the opportunity to make written submissions, even if coupled with an opportunity to reply in writing to allegations of fact and law against interest, would be insufficient.\n\n109. Finally, I wish to quote part of the dissenting reasons written by Pigeon J. in Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639, at pp. 657 and following:\n\nIt should at first be pointed out that the appellant's claim for refugee status was made under amendments to the Immigration Appeal Board Act (R.S.C. 1970, c. I‑3, \"the Act\") enacted by the statute of 1973, 21‑22 Eliz. II, c. 27, ss. 1 and 5. (The Immigration Act, 1976 (25‑26 Eliz. II, c. 52), although assented to August 5, 1977, was proclaimed in force on April 10, 1978.)\n\nThe first mentioned amendment added to s. 2 of the Act the following definition:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-81", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 81", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "\"Convention\" means the United Nations Convention Relating to the Status of Refugees signed at Geneva on the twenty‑eighth day of July, 1951 and includes any Protocol thereto ratified or acceded to by Canada;\n\nThe other amendment replaced s. 11 by a new section, the relevant parts of which are as follows:\n\n11. (1) Subject to subsections (2) and (3), a person against whom an order of deportation is made under the Immigration Act may appeal to the Board on any ground of appeal that involves a question of law or fact or mixed law and fact, if, at the time that the order of deportation is made against him, he is\n\n...\n\n(c) a person who claims he is a refugee protected by the Convention; or\n\n...\n\n(2) Where an appeal is made to the Board pursuant to subsection (1) and the right of appeal is based on a claim described in paragraph (1)(c) or (d), the notice of appeal to the Board shall contain or be accompanied by a declaration under oath setting out\n\n(a) the nature of the claim;\n\n(b) a statement in reasonable detail of the facts on which the claim is based;\n\n(c) a summary in reasonable detail of the information and evidence intended to be offered in support of the claim upon the hearing of the appeal; and\n\n(d) such other representations as the appellant deems relevant to the claim.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-82", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 82", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "(3) Notwithstanding any provision of this Act, where the Board receives a notice of appeal and the appeal is based on a claim described in paragraph (1)(c) or (d), a quorum of the Board shall forthwith consider the declaration referred to in subsection (2) and, if on the basis of such consideration the Board is of the opinion that there are reasonable grounds to believe that the claim could, upon the hearing of the appeal, be established, it shall allow the appeal to proceed, and in any other case it shall refuse to allow the appeal to proceed and shall thereupon direct that the order of deportation be executed as soon as practicable.\n\n...\n\nIn the present case no indication was given to the appellant of the reasons for which her claim to refugee status was denied and, in my view, this raises a very serious question. The Immigration Appeal Board is not an administrative agency but a \"court of record\" (s. 7, now s. 65). It must therefore be subject to the rule that it is not enough that justice be done, it must appear to be done. It is also a well established principle that audi alteram partem is a rule of natural justice so firmly adopted by the common law that it applies to all those who fulfil judicial functions and it is not excluded by inference. See: L’Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board [1953] 2 S.C.R. 140, per Rinfret C.J. at p. 154:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-83", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 83", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "[TRANSLATION] The rule that no one should be convicted or deprived of his rights without a hearing, and especially without even being informed that his rights would be in question, is a universal rule of equity, and the silence of a statute should not be relied on as a basis for ignoring it. In my opinion, there would have to be nothing less than an express statement by the legislator for this rule to be superseded: it applies to all courts and to all bodies required to make a decision that might have the effect of destroying a right enjoyed by an individual.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-84", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 84", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Komo Construction Inc. v. Labour Relations Board, [1968] S.C.R. 172, this Court upheld a decision rendered without a hearing when the parties had been given the opportunity of submitting argument in writing and the Board had issued reasons. This is a very different situation from that which is presented in this case where there was no hearing and no reasons were given. In MacDonald v. The Queen, [1977] 2 S.C.R. 665, this Court upheld a conviction by special Court Martial although no reasons had been given but there had been a hearing. I know of no case where a judicial decision was upheld, where there was neither a hearing nor reasons given, so that nothing shows on what basis the decision was reached. It may be different when the decision is on a purely discretionary matter such as the granting of leave to appeal, but here the decision of the Board is an adjudication on appellant's entitlement to refugee status, a matter of right under the statute and the Convention, not a matter of discretion. In Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470, this Court accepted that where the statute provided for the issue of a special certificate by administrative decision this was to be taken as final and as excluding the audi alteram partem rule, but such is not the case with respect to the determination of refugee status. This was entrusted to a board which is a \"court\" and must act judicially as appears from such cases as Leiba v. Minister of Manpower and Immigration, [1972] S.C.R. 660.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-85", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 85", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "I do, of course, appreciate that the validity of the Immigration Appeal Board \"judgement\" is not directly in question before this Court and that the decision challenged before us is the order of the Federal Court of Appeal denying leave to appeal. However, I feel it is essential for a proper appreciation of what is involved in the matter to consider fully the ultimate result, that Canada having entrusted to a special court the adjudication of claims to refugee status this was done in this case without any semblance of due process. The Court is faced with a decision without reasons, without a hearing, without any statement of the Minister's objections, if any, to appellant's claim for refugee status.\n\n110. It should be pointed out that in the cases at bar, all the appellants were provided with short reasons of the Minister and two of them were provided with more elaborate reasons of the Immigration Appeal Board. The remaining appellants did not exercise their rights to request and receive the reasons of the Board pursuant to s. 71(4) of the Immigration Act, 1976. But the opinion of Pigeon J. retains all its relevance with respect to the necessity of a hearing and it is reinforced by the Canadian Bill of Rights. As indicated earlier, this was a dissenting opinion, but it was not on this point that it differed from the reasons of the majority. It was also concurred in by two other members of the Court. Pigeon J. does not expressly mention the necessity of an oral hearing but this is what he must have meant given his distinguishing the Komo Construction case dealing with a situation in which there had been no oral hearing, and his reference to the MacDonald case, a special Court Martial case where an oral hearing had been held.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-86", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 86", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "111. Since the appellants have been denied their fundamental right to a hearing, the question arises as to what remedy they are entitled to in the circumstances of these cases.\n\n112. It seems clear to me that the orders of the Immigration Appeal Board concerning them ought to be set aside and that their claims to Convention refugee status ought to be adjudicated upon on the merits after the holding of full oral hearings. The question is by whom should these claims so be adjudicated upon.\n\n113. For various reasons, all the appellants have expressed a preference for an adjudication at the initial stage, that is at the level of the Refugee Status Advisory Committee which would then not only advise, but decide in a manner consistant with s. 2(e) of the Canadian Bill of Rights; or alternatively, at the level of the Minister who would decide the issue in a similar manner. In their written submissions, counsel argued that it was more proper as well as more convenient that the situation be remedied at the first instance level rather than at the appellate one. It was pointed out that in a press release dated May 2, 1983, the Minister of Employment and Immigration announced that oral hearings for refugee claimants would be held on an experimental basis in Montréal and Toronto by members of the Refugee Status Advisory Committee. It was observed that the text of s. 45 of the Immigration Act, 1976 in no way forbids or prevents the holding of oral hearings. Declarations that certain parts of ss. 45(4) and 45(5) of the Immigration Act, 1976 are inoperative were suggested to empower the Refugee Status Advisory Committee to adjudicate rather than to advise.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-87", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 87", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "114. The points might be well taken if they were addressed to Parliament. There is probably more than one way to remedy the constitutional shortcomings of the Immigration Act, 1976. But it is not the function of this Court to re‑write the Act. Nor is it within its power. If the Constitution requires it, this and other courts can do some relatively crude surgery on deficient legislative provisions, but not plastic or re‑constructive surgery. Furthermore, for the procedural and jurisdictional reasons mentioned earlier, all that is before us is a decision of the Federal Court of Appeal dismissing s. 28 applications aimed at the orders of the Immigration Appeal Board. To repeat, the advice given by the Refugee Status Advisory Committee and the initial determinations made by the Minister have not been attacked and are not subject to review in these appeals.\n\n115. We are thus left with the Immigration Appeal Board and with ss. 70 and 71 of the Immigration Act, 1976:\n\n70. (1) A person who claims to be a Convention refugee and has been informed in writing by the Minister pursuant to subsection 45(5) that he is not a Convention refugee may, within such period of time as is prescribed, make an application to the Board for a redetermination of his claim that he is a Convention refugee.\n\n(2) Where an application is made to the Board pursuant to subsection (1), the application shall be accompanied by a copy of the transcript of the examination under oath referred to in subsection 45(1) and shall contain or be accompanied by a declaration of the applicant under oath setting out\n\n(a) the nature of the basis of the application;\n\n(b) a statement in reasonable detail of the facts on which the application is based;", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-88", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 88", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "(c) a summary in reasonable detail of the information and evidence intended to be offered at the hearing; and\n\n(d) such other representations as the applicant deems relevant to the application.\n\n71. (1) Where the Board receives an application referred to in subsection 70(2), it shall forthwith consider the application and if, on the basis of such consideration, it is of the opinion that there are reasonable grounds to believe that a claim could, upon the hearing of the application, be established, it shall allow the application to proceed, and in any other case it shall refuse to allow the application to proceed and shall thereupon determine that the person is not a Convention refugee.\n\n(2) Where pursuant to subsection (1) the Board allows an application to proceed, it shall notify the Minister of the time and place where the application is to be heard and afford the Minister a reasonable opportunity to be heard.\n\n(3) Where the Board has made its determination as to whether or not a person is a Convention refugee, it shall, in writing, inform the Minister and the applicant of its decision.\n\n(4) The Board may, and at the request of the applicant or the Minister shall, give reasons for its determination.\n\n116. While section 71(1) may not expressly prohibit an oral hearing, as drafted, it does not make any sense if an oral hearing is held at this stage, and it is accordingly inconsistant with the holding of an oral hearing. Mr. Scott made the two following submissions:", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-89", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 89", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "31. In the further alternative, the Appellants submit that if section 45(4) is not construed as requiring a hearing before either the Minister or the RSCA, \"fundamental justice\" would nevertheless be satisfied if section 71 were construed as requiring a hearing before the Immigration Appeal Board on an application for \"redetermination\".\n\n32. It is submitted, however, that this would require a somewhat awkward construction of section 71(1) insofar as the section would then require a full oral hearing and consideration of the merits, in conformity with natural justice, in order that the Board might determine whether to grant leave to appeal, in which case a second hearing on the merits would occur. It is submitted, therefore, that the most straightforward and reasonable alternative is to declare \"inoperative\" all the words of section 71(1) following the words \"Where the Board receives an application referred to in subsection 70(2), it shall forthwith consider the application...\". If the remainder of this subsection were \"inoperative\", the result would be a hearing on the merits before the Appeal Board, which would decide the case.\n\n117. I agree with the last submission and I would grant the declaration therein requested, such a declaration to be in force however only with respect to the seven cases at bar where Convention refugee claims have been adjudicated upon on the merits without the holding of an oral hearing at any stage.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-90", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 90", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "118. The reason of the last mentioned restriction in the declaration is that I wish to refrain from expressing any view and to reserve judgment on the question whether s. 71(1) of the Immigration Act, 1976 is compatible with s. 2(e) of the Canadian Bill of Rights, in a case where a Convention refugee claim has been dismissed at the initial stage but after an oral hearing, and the claimant applied to the Board for a redetermination of his claim. It seems to me that in such a case, an application in writing for what is analogous to a leave to appeal, would not necessarily deprive the claimant of the right to a fair hearing in accordance with the principles of fundamental justice. Much might depend on the type of oral hearing held at the earlier stage, as well as on the type of questions to be decided in the appeal.\n\n119. In such a hypothetical case, the question would also arise as to whether the burden imposed upon the applicant by s. 71(1) to show a probability of success on a full hearing is compatible with the principles of natural justice. This test was adopted by this Court as a matter of statutory construction in Kwiatkowski v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856, but the Canadian Bill of Rights was not argued in that case. This question would not arise in the cases at bar where the Immigration Appeal Board will have to adjudicate on merits for the appellants' claims.\n\n120. I realize that if the Board does as I propose, the proceedings contemplated by s. 71(1) of the Immigration Act, 1976 will be short‑circuited and, for all practical purposes, be replaced by what amounts to a full appeal. But I fail to see any other practical or reasonable alternative in the circumstances of these cases.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-91", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 91", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "121. In the case of The Queen v. Drybones, [1970] S.C.R. 282, a provision of the Indian Act, R.S.C. 1952, c. 149, enacted prior to the adoption of the Canadian Bill of Rights was declared inoperative because it operated so as to abrogate, abridge or infringe one of the rights declared and recognized by the Canadian Bill of Rights. It has not been declared by any Act of the Parliament of Canada that the Immigration Act, 1976 shall operate notwithstanding the Canadian Bill of Rights. In view of s. 5(2) of An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms, 1960 (Can.), c. 44, in Part II which follows the Canadian Bill of Rights, I do not see any reason not to apply the principle in the Drybones case to a provision enacted after the Canadian Bill of Rights. Section 5(2) provides:\n\n(2) The expression \"law of Canada\" in Part I means an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder, and any law in force in Canada or in any part of Canada at the commencement of this Act that is subject to be repealed, abolished or altered by the Parliament of Canada.\n\n122. One last point before I reach my conclusion.\n\n123. All the parties agree that when the Immigration Appeal Board proceeds under s. 71(1) of the Immigration Act, 1976 it should not take into account any facts or materials other than those specified by s. 70(2) of the Act, notwithstanding some decisions of the Federal Court of Appeal which would appear to hold that the Board may rely for instance on information acquired through its experience in refugee cases. I would so direct the Board to restrict itself to the facts and material specified in s. 70(2) of the Act.\n\nConclusions", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-39-92", + "doc_type": "caselaw", + "act_code": "[1985] 1 SCR 177", + "act_short": "Singh", + "act_name": "Singh v. Minister of Employment and Immigration", + "section": "", + "citation": "Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177", + "marginal_note": "excerpt 92", + "heading": "Charter s. 7 rights of refugee claimants; the right to an oral hearing", + "part": "Supreme Court of Canada", + "division": "", + "text": "124. The appeals are allowed, the decisions of the Federal Court of Appeal and of the Immigration Appeal Board are set aside. The applications of the appellants for redetermination of their refugee claims are remanded to the Immigration Appeal Board which is directed to adjudicate upon them on the merits after a full oral hearing in each case, in accordance with the directions contained in these reasons.\n\n125. For the purposes of these seven cases, I would declare inoperative all the words of s. 71(1) of the Immigration Act, 1976, following the words:\n\n\"Where the Board receives an application referred to in subsection 70(2), it shall forthwith consider the application\".\n\n126. I would award costs on the application for leave to appeal and costs of the appeal to this Court to Mr. Satnam Singh on a solicitor‑client basis. Costs in respect of the other six appellants shall be as prescribed by the Order of this Court dated February 16, 1984.\n\nAppeals allowed.", + "current_to": "1985-04-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/39/index.do" + }, + { + "id": "scc-377-1", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 1", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "r. v. simmons, [1988] 2 S.C.R. 495\n\nLaura Mary Simmons Appellant\n\nv.\n\nHer Majesty The Queen Respondent\n\nand\n\nThe Attorney General for Ontario Intervener\n\nindexed as: r. v. simmons\n\nFile No.: 18767.\n\n1988: January 28; 1988: December 8.\n\nPresent: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.\n\non appeal from the court of appeal for ontario\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Customs searches ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Whether accused detained and having right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether right to counsel was subject to a reasonable limit prescribed by law justifiable under s. 1 of the Charter ‑‑ Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144.\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Customs searches ‑‑ Whether the personal search provisions in the Customs Act inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether right against unreasonable search and seizure was subject to a reasonable limit prescribed by law justifiable under s. 1 of the Charter ‑‑ Whether search conducted in a reasonable manner ‑‑ Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144.\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Accused's right to counsel infringed ‑‑ Whether admission of evidence of narcotics would bring the administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-2", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 2", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "Customs and excise ‑‑ Customs searches ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Whether the personal search provisions in the Customs Act inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms ‑‑ Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144.\n\nEvidence ‑‑ Admissibility ‑‑ Bringing administration of justice into disrepute ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Accused's right to counsel infringed ‑‑ Whether admission of evidence of narcotics would bring the administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-3", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 3", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "Appellant, on entering Canada, proceeded to the primary customs inspection where she was routinely questioned by a customs officer. The officer found her to be overly nervous and referred her for a secondary inspection. The secondary inspector was also suspicious of the appellant and obtained permission from the Customs Superintendent to search her. Her suspicions were based on the primary inspector's doubts about the appellant, her dissatisfaction with her identification, and on her observation that the appellant, although otherwise very slender, was slightly heavy and bulging in the area of her upper abdomen. Appellant was taken into a search room and shown a sign on the wall which set out ss. 143 and 144 of the Customs Act. These sections provided the authority for conducting personal searches. The inspector, accompanied by an other female customs officer, told the appellant to undress. Appellant complied and removed some of her clothes, revealing white adhesive bandages around her midriff. Concealed in the bandages were plastic bags containing cannabis resin. The appellant was then arrested and informed of her right to retain and instruct counsel.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-4", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 4", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "At trial, the judge held that the appellant had been detained from the moment she was taken into the search room and, because she had not been informed of her right to retain and instruct counsel before the search, her right under s. 10( b ) of the Canadian Charter of Rights and Freedoms had been violated. The trial judge then excluded the evidence under s. 24(2) of the Charter , holding that its admission into the proceedings would bring the administration of justice into disrepute. As a result, he acquitted the appellant. The Court of Appeal set aside appellant's acquittal and ordered a new trial. This appeal is to determine whether the appellant's rights under ss. 10( b ) and 8 of the Charter were violated when she was subjected to a strip search at customs; and, if so, whether evidence of narcotics obtained as a result of the search should be excluded under s. 24(2) of the Charter .\n\nHeld: The appeal should be dismissed.\n\nPer Dickson C.J. and Beetz, Lamer and La Forest JJ.: Appellant was detained within the meaning of s. 10 of the Charter when she was required, pursuant to s. 143 of the Customs Act, to undergo a strip search at customs and she should have been informed of her right to retain and instruct counsel at that time. This result is consistent with both the meaning given to detention in common parlance and with the definition set out in R. v. Therens, [1985] 1 S.C.R. 613. At the time of the search, appellant was clearly subject to external restraint. The customs officer had assumed control over her movements by a demand which had significant legal consequences. Appellant could not refuse to be searched and leave. Section 203 of the Customs Act makes it an offence to obstruct or to offer resistance to any personal search authorized by the Customs Act.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-5", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 5", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "Sections 143 and 144 of the Customs Act do not infringe the right to be secure against unreasonable search and seizure enshrined in s. 8 of the Charter . It is true that these sections do not meet the safeguards articulated in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, but these standards do not apply to customs searches. The degree of personal privacy reasonably expected at customs is lower than in most other situations. Sovereign states have the right to control both who and what enters their boundaries. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods. Under sections 143 and 144 of the Customs Act, searches of the person are performed only after customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body. The decision to search is subject to review at the request of the person to be searched. The searches are conducted in private rooms by officers of the same sex. In these conditions, requiring a person to remove pieces of clothing until such time as the presence or absence of concealed goods can be ascertained is not so highly invasive of an individual's bodily integrity to be considered unreasonable under s. 8 of the Charter .", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-6", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 6", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "The search itself, however, was not conducted in a reasonable manner. The denial of the right to counsel in this case in conjunction with the absence of any explanation to the appellant of her rights under the Customs Act rendered the search unreasonable. The customs officers did not read the text of the personal search provisions to the appellant but simply pointed to a sign on the wall containing the text of ss. 143 and 144. There is no evidence that the appellant read the provisions‑‑much less understood them‑‑and that she knew of her right, under s. 144, to demand a second authorization. It is clear that the violation of the right to counsel deprived the appellant of her ability to exercise a legal right provided in the Customs Act. A search that might not have been conducted had the appellant had the benefit of legal advice was performed in circumstances in which the appellant was ignorant of her legal position. The violation of the right to counsel combined with the statutory right of prior authorization rendered the performance of the search unreasonable.\n\nThe violations of appellant's rights under ss. 10( b ) and 8 of the Charter could not be justified under s. 1 of the Charter . The violations of the appellant's right to counsel and of her right to be secure against unreasonable search and seizure resulted from the actions of customs officials. It was not a limitation imposed by law.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-7", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 7", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although the breaches of the appellant's ss. 10(b) and 8 rights was not trivial, the admission of the evidence in question would not bring the administration of justice into disrepute. There were ample facts to support the customs officer's suspicion that the appellant was concealing something on her body for the purpose of bringing it into Canada illegally. The evidence obtained as a result of the strip search was real evidence that existed irrespective of the Charter violations and its admission into evidence would not tend to affect adversely the fairness of the trial process. The customs officers acted in good faith based on accepted customs procedures. There was nothing deliberate or blatant in the denial of the appellant's rights. There was nothing to indicate that the customs officers treated the appellant in a discourteous fashion. Finally, this Court has previously held that the constitutional invalidity of a search power does not render evidence inadmissible if the officers conducting the search have relied in good faith on the constitutionality of the provision. In this instance, the customs officials acted in accordance with the existing statutory requirements at the time of the search. Under these circumstances, it is the exclusion of the evidence that would bring the administration of justice into disrepute.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-8", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 8", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "Per Wilson J.: The constitutionality of appellant's strip search cannot be determined solely on the basis of whether there has been compliance with ss. 143 and 144 of the Customs Act. These statutory provisions must be read in accord with the obligation under s. 10( b ) of the Charter to inform those who are detained of their right to retain and instruct counsel and to respect that right. Any limit on the constitutionally guaranteed right to counsel, if it is to be valid under s. 1 of the Charter , has to be \"prescribed by law\". Sections 143 and 144 have to be examined to see whether a limit is provided for expressly or by necessary implication or through the operating requirements of the sections: see R. v. Therens, [1985] 1 S.C.R. 613, and R. v. Thomsen, [1988] 1 S.C.R. 640. There is nothing in ss. 143 and 144 which is incompatible with the right to counsel, nor do their operating requirements preclude such a right. Therefore, the violation of appellant's s. 10(b) rights prior to the search renders the search unconstitutional given the complete compatibility of the authorizing statutory search provisions with the right to retain and instruct counsel without delay which is guaranteed in the Constitution. An unconstitutional search cannot be a reasonable one.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-9", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 9", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although the unconstitutionality of the search renders the search per se unreasonable, the manner in which the search was conducted in this case was also unreasonable in light of the values and purposes protected by s. 8 of the Charter . It is unreasonable for a detained person to be simply directed to a sign on the wall of a search room setting out the legal provisions which authorize the search of his person. It is therefore not surprising that there is no indication that the appellant even read ss. 143 and 144 of the Customs Act, let alone exercised the legal options and rights conferred in those provisions. A person who is detained and about to be searched can hardly be expected to be his own lawyer. The right to counsel is the citizen's guarantee that his other rights will be respected. It prevents him from being overborne by the greater power of the state.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-10", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 10", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "Per McIntyre and L'Heureux‑Dubé JJ.: Appellant was not detained within the meaning of s. 10( b ) of the Charter when she was subjected to a strip search at customs pursuant to s. 143 of the Customs Act. The definition of detention in R. v. Therens, [1985] 1 S.C.R. 613, does not go as far as to cover a search by a customs officer who carries out the routine procedures in order to control the illegal importation of goods and substances across the border. Persons entering Canada, whether or not they are citizens, are placed in a unique legal situation at the point at which they enter the country. They expect to submit to a certain degree of inspection of their baggage, and in some cases, their person. Their situation is distinguishable from one where an individual is stopped or detained in the course of his activities within Canada. It is incidents of this latter nature to which the definition in Therens was meant to apply.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-11", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 11", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "The purpose of s. 10( b ) of the Charter gives also a clear indication that the provision does not apply to a border search. The purpose of the right to counsel is to ensure that the individual is treated fairly in the criminal process and, in particular, to prevent the individual from incriminating himself. In a border search the issue is not one of self‑incrimination. A search at the border is part of the process of entering the country and is not part of the criminal process. The right to counsel will arise only where a searched person is placed under custody as part of the criminal process. This does not mean, however, that no right to counsel can ever arise in searches which occur at ports of entry. Where the purpose of the detention, interrogation, or search arises in criminal proceedings, as distinct from those concerning entry into the country, the Charter protection against unreasonable search and seizure and the right to counsel will apply.\n\nFinally, considering this unique situation and the state interest in preventing the entry of undesirable persons or goods, customs searches pursuant to ss. 143 and 144 of the Customs Act are reasonable and do not therefore infringe s. 8 of the Charter . The search itself was conducted in a reasonable manner. Appellant, who was not detained within the meaning of s. 10( b ) of the Charter , was sufficiently informed of her right to appeal the search to a higher customs authority when she was shown the text of ss. 143 and 144 of the Customs Act.\n\nCases Cited\n\nBy Dickson C.J.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-12", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 12", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "Applied: R. v. Therens, [1985] 1 S.C.R. 613; R. v. Collins, [1987] 1 S.C.R. 265; distinguished: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; referred to: Chromiak v. The Queen, [1980] 1 S.C.R. 471; United States v. Ramsey, 431 U.S. 606 (1977); Carroll v. United States, 267 U.S. 132 (1925); United States v. Lincoln, 494 F.2d 833 (1974); United States v. Chavarria, 493 F.2d 935 (1974); United States v. King, 485 F.2d 353 (1973); United States v. Beck, 483 F.2d 203 (1973); R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Rodenbush and Rodenbush (1985), 21 C.C.C. (3d) 423; R. v. Jacoy, [1988] 2 S.C.R. 548, aff'g (1986), 30 C.C.C. (3d) 9 (B.C.C.A.), rev'g B.C. Prov. Ct. (Vancouver), October 25, 1985; R. v. Gladstone (1985), 22 C.C.C. (3d) 151; R. v. Jordan (1984), 11 C.C.C. (3d) 565; R. v. Jagodic and Vajagic (1985), 19 C.C.C. (3d) 305; Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961); R. v. Wray, [1971] S.C.R. 272; United States v. Guadalupe‑Garza, 421 F.2d 876 (1970); R. v. Dumas (1985), 23 C.C.C. (3d) 366; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301.\n\nBy Wilson J.\n\nReferred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Thomsen, [1988] 1 S.C.R. 640.\n\nBy L'Heureux‑Dubé J.\n\nDistinguished: R. v. Therens, [1985] 1 S.C.R. 613; approved: United States v. Ramsey, 431 U.S. 606 (1977); Carroll v. United States, 267 U.S. 132 (1925); referred to: Clarkson v. The Queen, [1986] 1 S.C.R. 383.\n\nStatutes and Regulations Cited\n\nAct respecting the Customs, S.C. 1867, c. 6.\n\nCanadian Charter of Rights and Freedoms , ss. 1 , 8 , 10( b ) , 24(2) .\n\nConstitution Act, 1982 , s. 52 .\n\nCriminal Code, R.S.C. 1970, c. C‑34, s. 618(2)(a) [rep. & subs. 1974‑75‑76, c. 105, s. 18(2)].", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-13", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 13", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144, 203.\n\nCustoms Act, S.C. 1986, c. 1, s. 98.\n\nNarcotic Control Act, R.S.C. 1970, c. N‑1, ss. 4(2), 5(1).\n\nAuthors Cited\n\nLaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, 2nd ed., vol. 3. St. Paul, Minn.: West Publishing Co., 1987.\n\nMichalyshyn, Peter B. \"The Charter Right to Counsel: Beyond Miranda\" (1987), 25 Alta. L. Rev. 190.\n\nAPPEAL from a judgment of the Ontario Court of Appeal (1984), 45 O.R. (2d) 609, 3 O.A.C. 1, 7 D.L.R. (4th) 719, 11 C.C.C. (3d) 193, 7 C.E.R. 159, setting aside appellant's acquittal on charges of importing narcotics and possession of narcotics for the purpose of trafficking (1983), 5 C.E.R. 396 and ordering a new trial. Appeal dismissed.\n\nC. Jane Arnup, for the appellant.\n\nJ. E. Thompson et J. W. Leising, for the respondent.\n\nCasey Hill, for the intervener.\n\nThe judgment of Dickson C.J. and Beetz, Lamer and La Forest JJ. was delivered by", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-14", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 14", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "1. The Chief Justice‑‑The appellant, Laura Mary Simmons, was indicted on two drug counts: (i) that she unlawfully \"did, at the City of Mississauga, in the Judicial District of Peel and Province of Ontario, on or about the 14th day of November in the year 1982, import into Canada a Narcotic, to wit: Cannabis sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis resin\", contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1970, c. N‑1, and (ii) that she unlawfully did, at the same place and date, \"have in her possession a Narcotic for the purpose of trafficking, to wit: Cannabis sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis resin\", contrary to s. 4(2) of the Narcotic Control Act. Drugs, contained in a body pack taped to her waist, were found on the person of the appellant by customs officers at Toronto International Airport. The trial judge ruled the evidence of the drugs, seized as a result of a body search, inadmissible, and found the appellant not guilty on both counts in the indictment.\n\n2. Appellant's acquittal at trial was reversed on appeal and she has now appealed as of right to this Court, pursuant to s. 618(2)(a) of the Criminal Code, R.S.C. 1970, c. C‑34.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-15", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 15", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "3. The principal issues in the case are whether the appellant's rights under ss. 10( b ) and 8 of the Canadian Charter of Rights and Freedoms were violated when she was subjected to a strip search at customs and, if so, whether evidence of narcotics obtained as a result of the search should be excluded under s. 24(2) of the Charter . These raise the following subsidiary issues: whether a strip search by customs officers constitutes a \"detention\" and thus gives rise to the right to retain and instruct counsel and to be informed of that right under s. 10( b ) of the Charter ; whether the personal search provisions (ss. 143 and 144) in the former Customs Act, R.S.C. 1970, c. C‑40, are inconsistent with a person's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter , and thereby, by reason of s. 52 of the Constitution Act, 1982 , of no force or effect to the extent of the inconsistency; and whether the violations, if any, of ss. 10(b) or 8 may be justified under s. 1 of the Charter .\n\n4. The statutory provisions to which reference is made in the foregoing paragraph read as follows:\n\nCanadian Charter of Rights and Freedoms\n\n1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.\n\n8. Everyone has the right to be secure against unreasonable search or seizure.\n\n10. Everyone has the right on arrest or detention\n\n...\n\n(b) to retain and instruct counsel without delay and to be informed of that right;", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-16", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 16", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.\n\n(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.\n\nConstitution Act, 1982\n\n52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.\n\nCustoms Act\n\n143. Any officer, or person by him authorized there‑ unto, may search any person on board any vessel or boat within any port in Canada, or on or in any vessel, boat or vehicle entering Canada by land or inland navigation, or any person who has landed or got out of such vessel, boat or vehicle, or who has come into Canada from a foreign country in any manner or way, if the officer or person so searching has reasonable cause to suppose that the person searched has goods subject to entry at the customs, or prohibited goods, secreted about his person.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-17", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 17", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "144. (1) Before any person can be searched, the person may require the officer to take him before a police magistrate or justice of the peace, or before the collector or chief officer at the port or place, who shall, if he sees no reasonable cause for search, discharge the person, but, if otherwise, he shall direct the person to be searched; but where the person is a female she shall be searched by a female, and any such magistrate, justice of the peace or collector may, if there is no female appointed for such purpose, employ and authorize a suitable female person to act in any particular case or cases.\n\nIf one traces ss. 143 and 144 as far back as Confederation one will find that the sections contained in the 1867 Customs Act (S.C. 1867, c. 6) are virtually the same as those in the 1970 Act. Both permit a search of the person when the customs officer \"has reasonable cause to suppose that the person searched\" has \"prohibited goods, secreted about the person\". In addition, both versions stipulate that a person may request to be brought before a justice of the peace, or before the collector or chief officer of the customs office for a second authorization before the search is performed. The 1970 provision adds a police magistrate to the list of officials who can give a second authorization.\n\n5. Sections 143 and 144 have since been repealed and replaced by s. 98 of the Customs Act, S.C. 1986, c. 1. That section changes the standard of suspicion to \"reasonable grounds\" and narrows the number of persons, before whom a person about to be searched may be brought, to the senior officer at the place the search is to take place.\n\nFacts", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-18", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 18", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "6. The appellant arrived at the Toronto International Airport on the evening of November 14, 1982 on Air Jamaica flight 071 from Jamaica. She proceeded to the primary customs inspection and was asked a series of standard questions by the customs officer. The appellant identified herself as \"Maureen Claudia\" Simmons, stated that she lived in Montréal, and declared a total of $25 as the value of all goods she was bringing into the country. Finding the appellant to be \"overly nervous and jittery and a bit agitated\", the primary customs officer concluded she should be referred for a secondary inspection and gave the appellant an inspection card bearing the number \"86\". The number 8 represented the code indicating the trav­eller should be referred to secondary inspection. The 6 indicated that the primary inspector had doubts about the goods the passenger had declared.\n\n7. The secondary customs officer, Inspector Kathy Badham, asked the appellant for identification and conducted a search of the appellant's luggage. The appellant produced a photocopy of her baptismal certificate and stated that the rest of her identification had been stolen in Montréal. The search of the appellant's luggage did not reveal contraband. At some point during the secondary inspection, the appellant indicated that she was an unemployed, freelance commercial artist. The secondary inspector was suspicious of the appellant and requested permission from the Customs Superintendent to search the appellant's person. The suspicions were based on the primary inspector's doubts about the appellant, dissatisfaction with the appellant's identification, and the secondary inspector's observation that the appellant, although otherwise very slender, was slightly heavy and bulging in the area of her upper abdomen.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-19", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 19", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "8. The secondary inspector informed the appellant that she was going to be searched as permitted by the Customs Act and together with another female customs officer showed the appellant into a search room located behind the secondary search area. She asked the appellant if she was hiding anything and the appellant responded that she was not. The officer then drew the appellant's attention to a sign on the wall of the search room which set out ss. 143 and 144 of the Customs Act quoted earlier. These sections, the inspector advised the appellant, provided the authority for conducting personal searches. There is no indication that the appellant read the provisions.\n\n9. The secondary inspector told the appellant to undress. The appellant complied, removing her jacket, dress, and blouse. The inspector thought she saw something concealed underneath the appellant's girdle and again asked the appellant if she was hiding anything. Again the appellant responded that she was not. The appellant then removed her girdle, revealing white adhesive bandages around her midriff. When questioned about the bandages, the appellant responded that they were for her back. The inspector asked the appellant to remove the bandages. The appellant replied \"is this really necessary?\" then complied with the request. Removal of the bandages revealed six plastic bags containing 1.98 kilograms of cannabis resin, otherwise known as hashish oil, with a street value of $22,000. The appellant was then arrested for importing narcotics and was informed of her right to retain and instruct counsel. She forthwith telephoned counsel.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-20", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 20", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "10. As Howland C.J.O. noted in the Court of Appeal, by agreement of counsel at trial, evidence was furnished that between April 1, 1982 and March 31, 1983, there were 442 drug seizures at the Toronto International Airport, of which 80 per cent were cannabis seizures from flights originating in Jamaica.\n\nII\n\nThe Trial\n\n11. At trial before Kent Co. Ct. J., the appellant argued that because of the small amount of narcotics involved and the surrounding circumstances of the offence, prosecuting the appellant for importing narcotics and for trafficking rather than lesser charges constituted unfair treatment, violating appellant's rights under ss. 7 and 12 of the Charter . The appellant also alleged that searches made pursuant to s. 143 of the Customs Act infringed s. 8 of the Charter , that there were no grounds under s. 143 for searching the appellant, that the appellant was arbitrarily detained in violation of s. 9 of the Charter , and that because the appellant had not been informed of her right to retain and instruct counsel before she was searched, s. 10( b ) of the Charter had been infringed.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-21", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 21", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "12. In a judgment rendered on May 13, 1983, and reported at (1983), 5 C.E.R. 396, Kent Co. Ct. J. found the appellant not guilty of the charges. The judgment was based on the s. 10(b) argument only. It will be recalled that s. 10(b) of the Char­ter, quoted earlier, assures everyone the right \"on arrest or detention\" to retain and instruct counsel without delay, and to be informed of that right. The judge held that the appellant had been detained from the moment she was taken into the search room for a body search, as she was then subject to compulsory restraint. In coming to this conclusion he emphasized the testimony of the inspector who conducted the search who stated that in her view the appellant had been detained in her custody and was not free to leave the search room. The appellant, the judge felt, should therefore have been informed of her right to retain and instruct counsel before the search was conducted and, as she had not been so informed, her right under s. 10( b ) of the Charter had been violated.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-22", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 22", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "13. The trial judge excluded the evidence under s. 24(2) of the Charter , holding that in all the circumstances its admission into the proceedings would bring the administration of justice into disrepute. The judge pointed out that if the appellant had been advised of her Charter rights before the search, she might well have phoned her lawyer who could have advised her to request that she be brought before a justice of the peace, police magistrate or chief customs officer pursuant to s. 144. In the opinion of the judge this took on particular significance in this case because of the limited evidence in support of the \"reasonable cause\" for a search as required by s. 143 of the Customs Act. He concluded therefore that the discovery of the illicit drugs was not inevitable and might not have taken place if the appellant's s. 10(b) rights had not been infringed. He found the appellant not guilty as charged.\n\nThe Ontario Court of Appeal", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-23", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 23", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "14. A five member panel of the Ontario Court of Appeal reversed Kent Co. Ct. J.'s decision, Tarnopolsky J.A. dissenting in part: (1984), 7 D.L.R. (4th) 719. Howland C.J.O. for the majority held that the appellant had not been detained when she was subjected to a strip search at the border. In his view, the word \"detention\" in s. 10 of the Charter was to be accorded the meaning given to that word in s. 2(c) of the Canadian Bill of Rights, R.S.C. 1970, App. III, by this Court in Chromiak v. The Queen, [1980] 1 S.C.R. 471. It should be noted that the Court of Appeal did not have the benefit of this Court's decision in R. v. Therens, [1985] 1 S.C.R. 613. Howland C.J.O. also considered the American jurisprudence on border searches. He noted that American courts have considered border searches to be an exception to the protection against search and seizure embodied in the Fourth Amendment of the Constitution of the United States. Howland C.J.O. shared the view that customs searches constitute a distinct type of state involvement with the individual and for that reason should be regarded differently. He stated at pp. 740‑41:", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-24", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 24", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my opinion, border searches for contraband fall into a very special category. If a person reasonably arouses suspicion by giving the appearance of concealing something on his or her person, then he or she must expect to be asked to remove sufficient clothing to confirm or dispel this suspicion. There is nothing demeaning about such a request. The respondent was only requested to remove such of her clothing as was necessary to disclose that she was concealing illegal drugs. She was not touched in any way by Inspector Badham. The very large number of illegal drug seizures at the Toronto International Airport arising from Jamaica flights is indicative of the magnitude of the problem.\n\nIt would be wrong to conclude that the brief restraint involved in the ordinary progressive border search for contraband conducted by a customs officer pursuant to ss. 143 and 144 of the Customs Act constitutes a detention within the meaning of s. 10 of the Charter .\n\nHowland C.J.O. also noted that s. 143 of the Customs Act formed part of comprehensive border regulation to which both citizens and non‑citizens alike were subject when seeking to enter Canada from abroad.\n\n15. Howland C.J.O. found no merit to the appellant's argument that ss. 143 and 144 of the Customs Act violated s. 8 of the Charter . In his view, a body search conducted under ss. 143 and 144 should not be considered to be unreasonable within s. 8 of the Charter . He stated at p. 746:\n\nI do not think it is unreasonable for sovereign nations, such as Canada, to provide for a temporary restraint on persons entering the country, and if necessary, for a search of their persons to see if they are bringing contraband into Canada.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-25", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 25", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "16. Despite his finding that the appellant was not detained and therefore that her right to counsel under s. 10( b ) of the Charter had not been infringed, Howland C.J.O. went on to consider the appellant's arguments with respect to s. 24(2). In considering the test for whether the admission of evidence would bring the administration of justice into disrepute, he enunciated the following factors: the nature of the illegality, the manner in which the evidence was obtained, the good faith of the persons who obtained the evidence, whether the accused's rights under the Charter were knowingly infringed, and the seriousness of the charge. In this case, Howland C.J.O. was of the view that all the factors militated towards admitting the evidence. The search occurred at the border and was specifically authorized by an Act of Parliament. It was not unreasonable and did not involve any unnecessary invasion of privacy. The customs officers acted in good faith and fully in accordance with the law as stated in the Customs Act. The seizure of drugs was sizable and the charges faced by the accused serious. Accordingly, the admission of the evidence would in no way shock the community. On the contrary, exclusion of the evidence would bring the administration of justice into disrepute.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-26", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 26", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "17. Tarnopolsky J.A. agreed that the evidence in this case should not have been excluded by the trial judge but dissented on the question of detention. In his view, Chromiak, supra, dealt only with the question of roadside breath tests and did not determine whether a person who is required to submit to an examination by a government agency is detained. He also distinguished strip searches at customs from roadside breath testing on two grounds. In Chromiak the accused was free to leave the scene after refusing to take a breath test; the appellant in this case was not free to refuse to be subjected to a body search. Secondly, the search involved in this case was a far more serious intrusion into a person's dignity and privacy than the breath test contemplated in Chromiak. The highly intrusive nature of the search and the fact that it was performed under conditions of restraint compelled Tarnopolsky J.A. to the conclusion that the appellant was detained when she was strip searched and accordingly, her right to counsel had been infringed.\n\nIII\n\nInterventions and Constitutional Questions\n\n18. The Attorneys General for Ontario and Alberta filed notice of intention to intervene in the appeal to this Court. The Attorney General for Alberta later withdrew. The Attorney General for Ontario filed a factum in support of the respondent Crown.\n\n19. Prior to hearing the appeal the following constitutional questions were stated:", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-27", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 27", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "1. Is a person who is required by a customs officer upon entering Canada to submit to a search of his or her person for contraband which is suspected of being secreted about his or her person, such search being pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms , thereby requiring that such person be informed of the right to retain and instruct counsel without delay?\n\n2. Are sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, inconsistent with a person's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms , and thereby of no force and effect to the extent of that inconsistency?\n\n3. If a failure to inform a person who is searched pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, of his or her right to retain and instruct counsel without delay is in violation of s. 10 of the Canadian Charter of Rights and Freedoms , is such a violation justified by s. 1 of the Canadian Charter of Rights and Freedoms ?\n\n4. If sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, are found to be inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms , are these sections justified by s. 1 of the Canadian Charter of Rights and Freedoms ?\n\nIV\n\nCustoms Searches", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-28", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 28", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "20. In this Court counsel for the appellant advanced two main arguments. It was submitted that the appellant was \"detained\" when she was required to undergo a body search and thus her right to retain and instruct counsel and to be informed of that right under s. 10(b) was infringed. Second, counsel contended that ss. 143 and 144 of the Customs Act were inconsistent with the right to be secure against unreasonable search and seizure guaranteed by s. 8 of the Charter . It was submitted that neither violation could be saved by s. 1. On the basis of these violations, counsel for the appellant contended that admission of the narcotics into evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter .\n\n21. Crown counsel took the position that the appellant had not been detained and that ss. 143 and 144 of the Customs Act were not inconsistent with s. 8 of the Charter . Both arguments were largely based on characterizing border searches as a special case. Accordingly, the respondent argued that the brief restraint involved in the ordinary progressive border search conducted pursuant to the Customs Act did not constitute detention within the meaning of s. 10 of the Charter . Similarly, though conceding that the search provisions in ss. 143 and 144 did not conform to the criteria established by this Court in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, the Crown contended that Hunter v. Southam Inc. was inapplicable to the border search situation.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-29", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 29", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "22. Before turning to the specific Charter issues, it is useful to consider briefly the significance of the border crossing situation. The respondent stressed that customs searches should be treated differently because of the important national interest that border regulation serves. In the respondent's submission, strip searches such as the one to which the appellant was subjected, are reasonable in the circumstances of monitoring the goods that enter the country. The delay travellers experience when required to undergo a personal search is incidental to the reasonable progression of increasingly more intrusive border searches and for that reason does not constitute a detention within the meaning of s. 10 of the Charter .\n\n23. The American courts have long recognized border situations as an exception to the general protection against unreasonable search and seizure of the Fourth Amendment. The First Congress of the United States passed a customs statute in 1789 exempting border searches from the requirement of probable cause (LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2nd ed. 1987), vol. 3, at p. 710). This was the same Congress which two months later proposed the American Bill of Rights including the Fourth Amendment. Border regulation legislation similar to this first statute has existed in the United States since the original enactment.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-30", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 30", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "24. The United States Supreme Court did not have cause to pronounce directly upon the constitutional validity of the search provisions in American customs legislation until 1977 in United States v. Ramsey, 431 U.S. 606 (1977), a case concerning the search of international mail. Lower courts had, however, consistently upheld the validity of customs provisions which permitted border searches to be conducted without securing a warrant and without establishing probable cause (LaFave, op. cit., at p. 712; see United States v. Lincoln, 494 F.2d 833 (9th Cir. 1974); United States v. Chavarria, 493 F.2d 935 (5th Cir. 1974); United States v. King, 485 F.2d 353 (10th Cir. 1973); United States v. Beck, 483 F.2d 203 (3d Cir. 1973)). Dicta in Supreme Court decisions drew a distinction between searches within national boundaries, which were generally subject to the warrant and probable cause requirements of the Fourth Amendment, and those occurring at the border which required neither. In Carroll v. United States, 267 U.S. 132 (1925), a case heard during the era of prohibition, the Supreme Court succinctly stated the essential difference between searches of persons presenting themselves for entry at the border and persons already in the country (at pp. 153‑54):", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-31", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 31", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country . . . have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise. [Emphasis added.]\n\nCarroll clearly indicated that the national interest in preventing the entry of contraband into the country made searches which would be unreasonable in other circumstances reasonable at the border.\n\n25. In Ramsey, supra, the Supreme Court was finally confronted with a Fourth Amendment challenge to customs search provisions. Rehnquist J., for the Court, commented at some length on the special nature of customs searches at pp. 616‑17:", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-32", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 32", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs officials \"full power and authority\" to enter and search \"any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . . .\". The acknowledgment of plenary customs power was differentiated from the more limited power to enter and search ``any particular dwelling‑house, store, building or other place . . .\" where a warrant upon \"cause to suspect\" was required. The historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest.\n\nAfter reviewing other United States Supreme Court cases in which border situations had been mentioned, Rehnquist J. came to the following conclusion on the validity of border searches at p. 619:", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-33", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 33", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be \"reasonable\" by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless \"reasonable\" has a history as old as the Fourth Amendment itself. We affirm it now.\n\n26. While we must, of course, be wary of adopting American interpretations where they do not accord with the interpretive framework of our Constitution, the American courts have the benefit of two hundred years of experience in constitutional interpretation. This wealth of experience may offer guidance to the judiciary in this country.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-34", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 34", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "27. It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X‑rays, to emetics, and to other highly invasive means.\n\n28. I wish to make it clear that each of the different types of search raises different issues. We are here concerned with searches of the second type and what I have to say relates only to that type of search. Searches of the third or bodily cavity type may raise entirely different constitutional issues for it is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection. I turn now to a consideration of the appellant's specific Charter claims.\n\nSection 10 of the Charter", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-35", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 35", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "29. The first issue to be determined in this appeal is whether the appellant was detained within the meaning of s. 10 of the Charter when she was required to undergo a strip search at customs. As noted, s. 10(b) provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. If the appellant was detained, her right to retain and instruct counsel was violated since she was not informed of that right until the narcotics were found.\n\n30. In R. v. Therens, supra, this Court considered the meaning of detention in the context of a breathalyzer demand made by a police officer under the former s. 235 of the Criminal Code . Le Dain J. made the following comments, in which all members of the Court concurred at pp. 641‑42:\n\nThe purpose of s. 10 of the Charter is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10‑‑arrest and detention‑‑are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel. In its use of the word \"detention\", s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-36", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 36", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.\n\nFrom the foregoing passage it is clear that the right to counsel becomes available upon something less than formal arrest. This Court has recently affirmed this definition of detention in R. v. Hufsky, [1988] 1 S.C.R. 621, and R. v. Thomsen, [1988] 1 S.C.R. 640.\n\n31. Counsel for the Crown argued before this Court that the definition of detention in Therens was inappropriate in the circumstances of border searches. It was the Crown's submission that the liberty of travellers is subject to physical constraints that may have significant legal consequences from the moment travellers arrive at the border requesting entry into Canada; detention should not be interpreted to include the ordinary, increasingly more intrusive course of border searches for contraband. Strip searches fall within this routine procedure. Detention within the meaning of s. 10 of the Charter would not be reached until an agent of the state imposed a restraint on a person's liberty beyond the normal restraints involved in ensuring that the person and his or her goods are lawfully admissible. In Crown counsel's submission, this level of restraint was not reached in this case.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-37", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 37", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "32. Only a few lower courts have considered the issue of detention in the context of a search at customs. In R. v. Rodenbush and Rodenbush (1985), 21 C.C.C. (3d) 423 (B.C.C.A.), the British Columbia Court of Appeal held on the authority of Therens, supra, that persons required to wait in an inspection room while their luggage was inspected in another room were detained. In Rodenbush the accused, a married couple, had been under police surveillance while in Seattle. Before the couple arrived at the Canadian border, United States drug enforcement personnel warned Canadian customs officials of their impending arrival. When they reached customs, the accused declared purchases of approximately $70 worth of clothing and were referred to the customs building to pay duty. The officer to whom the accused made the payment requested to inspect their car. Two suitcases which the accused had been given in Seattle while under surveillance were in the back of the car. The officer removed and opened the suitcases and noticed deep gouges on some of the rivets inside one of them. The officer indicated that he wished to inspect the suitcases further and took them to an inspection room where he left them with other inspectors. The officer then led the accused to a second inspection room where he waited with them for the results of the luggage inspection. The search of the suitcases yielded 4.22 kilograms of cocaine with a purity of 76 per cent by weight and a street value of more than $1.6 million.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-38", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 38", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "33. While awaiting the outcome of the luggage search, the inspector carried on a conversation with the accused. When the cocaine was discovered, a customs superintendent notified the inspector of the find and asked him to question the accused about the suitcases. The accused made a false statement concerning where they had acquired the suitcases. The inspector then informed them of the discovery of cocaine and placed them under arrest. The British Columbia Court of Appeal held that the accused were detained within the meaning of s. 10 of the Char­ter when they were asked by the customs officer to enter a separate interview room.\n\n34. The British Columbia Court of Appeal has considered the question of detention in the customs setting on two other occasions. In R. v. Jacoy (judgment being rendered this date), the accused was being monitored by the police for involvement in drug trafficking. As he proceeded north from Seattle towards the Canadian border, the R.C.M.P. contacted customs and suggested they flag the accused for a routine search. The accused was not to know customs had any suspicions about him. Cronin Prov. Ct. J. (reasons unreported) held that Jacoy was detained from the moment he was stopped at the border. He excluded the narcotics under s. 24(2) of the Charter on the basis of the s. 10(b) violation and acquitted the accused. The case was reversed on appeal to the British Columbia Court of Appeal (reported at (1986), 30 C.C.C. (3d) 9) on other grounds and was argued before this Court on the same day as the instant appeal. In R. v. Gladstone (1985), 22 C.C.C. (3d) 151 (B.C.C.A.), the British Columbia Court of Appeal assumed without deciding that an accused who had been subject to a strip search had been detained within the meaning of s. 10 of the Charter .", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-39", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 39", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "35. In my view, the appellant was detained when she was required to undergo a strip search pursuant to s. 143 of the Customs Act. This result is consistent with both the meaning given to detention in common parlance and with the definition laid out by Le Dain J. in Therens, supra. When the customs officer informed the appellant that she was going to be searched, the appellant could not have refused and continued on her way. The customs officer testified that had the appellant attempted to leave, she would have notified the R.C.M.P. In addition, s. 203 of the Customs Act makes it an offence to obstruct or to offer resistance to any personal search authorized by the Customs Act. At the time of the search the appellant was quite clearly subject to external restraint. The customs officer had assumed control over her movements by a demand which had significant legal consequences.\n\n36. I am not persuaded by the argument made before us by the Crown that if a strip search is considered a detention, all travellers passing through customs must be seen to be detained and therefore, to have a right to counsel. In Therens, supra, Le Dain J. stated that not all communication with police officers and other state authorities will amount to detention within the meaning of s. 10( b ) of the Charter . This statement is equally valid with respect to the customs situation. I have little doubt that routine questioning by customs officials at the border or routine luggage searches conducted on a random basis do not constitute detention for the purposes of s. 10. There is no doubt, however, that when a person is taken out of the normal course and forced to submit to a strip search that person is detained within the meaning of s. 10.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-40", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 40", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "37. Counsel for the Crown argued that even if the appellant had been detained, not all detentions require the provision of all the rights enumerated in s. 10 of the Charter ; in this case, the detention does not give rise to a right to counsel since no purpose would be served by allowing a person who is going to be searched the right to retain and instruct counsel. I do not agree with this submission. If the appellant had been given the right to consult counsel, counsel could have informed her of her right under s. 144 of the Customs Act to request higher authorization for the search. It is idle to speculate as to what might have happened. In my view it is not correct to argue that counsel would perform no useful function in this situation.\n\n38. I am therefore of the view that the appellant was detained when she entered the search room and that she should have been informed of her right to retain and instruct counsel at that time.\n\nVI\n\nSection 8 of the Charter\n\n39. The second issue raised in this appeal is the constitutional validity of the former ss. 143 and 144 of the Customs Act. It should be noted at the outset that the appellant does not allege that the search to which she was subjected failed to satisfy the terms of ss. 143 and 144 of the Customs Act. Her argument is rather that the personal search provisions of the Customs Act do not conform to the Charter . Counsel for the appellant argued that these sections infringe the right to be secure against unreasonable search and seizure enshrined in s. 8 of the Charter because they do not conform to the criteria established by this Court in Hunter v. Southam Inc. The Crown conceded the sections do not meet the Hunter v. Southam Inc. standards but contended that these standards are inapplicable to border situations.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-41", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 41", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "40. In Hunter v. Southam Inc., the Court considered the validity of certain sections of the Combines Investigation Act, R.S.C. 1970, c. C‑23, in the context of s. 8 of the Charter . Under the search provisions of that Act, combines investigation officers could obtain authorization to search any premises on which the Director of Investigation believed evidence relevant to an inquiry under the Combines Investigation Act was to be found. This Court found the provisions infringed the right to be secure against unreasonable search and seizure. The Court recognized that the purpose of s. 8 was to act as a limitation on the pre‑existing search powers of government. The Charter does not protect the individual from all searches, but only from those deemed to be unreasonable. The central question in that appeal was how to assess whether the search provisions in the Combines Investigation Act were reasonable. This Court now faces the same issue with reference to the Customs Act.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-42", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 42", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "41. In Hunter, this Court established three criteria to which reasonable searches must conform. First, where possible, the search must have been approved by prior authorization. This ensures that unjustified searches will be prevented before they occur. The Court acknowledged that it might not be reasonable in all circumstances to insist on prior authorization but held that where it was feasible, prior authorization was a pre‑condition of a reasonable search. Second, the person authorizing the search need not be a judge but must act in a judicial manner. That person must be able to assess in a neutral and impartial fashion whether on the evidence available a search is appropriate. Finally, there must be reasonable and probable grounds, established upon oath to believe that an offence has been committed and that evidence of this is to be found at a particular place. The Court recognized that this standard is subject to change \"[w]here the state's interest is not simply law enforcement as, for instance, where state security is involved, or where the individual's interest is not simply [an] expectation of privacy as, for instance, when the search threatens . . . bodily integrity\" (p. 168).", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-43", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 43", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "42. In this case it is clear that the Hunter v. Southam Inc. standards are not met. Sections 143 and 144 do not mandate prior authorization of personal searches by a person acting in a judicial capacity. The standard upon which a search may be conducted under the provisions, reasonable cause to suppose, also falls short of the reasonable and probable grounds established on oath required by Hunter. There is no warrant requirement. The question this Court must address is whether strip searches of persons seeking to enter this country are reasonable within the meaning of s. 8 of the Charter even if they do not satisfy the criteria established in Hunter v. Southam Inc.\n\n43. The Crown urged this Court to accept the submission that customs represents an unusual situation and therefore that the requirements of Hunter v. Southam Inc. should not be applied to border searches. The Ontario Court of Appeal accepted this argument. That court held that it was not unreasonable for sovereign nations to restrain temporarily persons entering the country, nor was it unreasonable to search their persons to determine if they were bringing contraband into the country. The British Columbia Court of Appeal also accepted this position in R. v. Jordan (1984), 11 C.C.C. (3d) 565 (B.C.C.A.) In that case the accused was subjected to a strip search upon his return from Asia based on an informant's tip that he would be transporting illicit drugs. The court rejected the accused's s. 8 challenge to the validity of ss. 143 and 144 holding that the standard of reasonableness is much lower in respect of border searches. It expressly adopted the American approach to the reasonableness of customs searches.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-44", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 44", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "44. The Nova Scotia Supreme Court reached the opposite result in R. v. Jagodic and Vajagic (1985), 19 C.C.C. (3d) 305 (N.S.S.C.T.D.) That case concerned the constitutionality of s. 133 of the former Customs Act which permitted any collector or justice of the peace, upon information, to open and examine any package suspected to contain prohibited property or smuggled goods brought into the country. Acting on information from the United States, customs officers and the R.C.M.P. had searched a car being imported from Germany by Jagodic when it arrived at East Passage, Nova Scotia. Seven bags of cocaine were discovered hidden behind the door panels of the car. MacIntosh J. held that Hunter v. Southam Inc. established a minimum standard for all searches consistent with s. 8 of the Charter and accordingly found s. 133 in violation of that section. The judge, however, found the search of the car valid even though it had been conducted without a warrant since it was not feasible to obtain a warrant in the circumstances. Although his conclusion that the rights of the accused were not violated made a discussion of admissibility unnecessary, MacIntosh J. went on to consider the question of admissibility under s. 24(2) of the Charter . He was of the view that admission of the evidence would not bring the administration of justice into disrepute.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-45", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 45", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "45. The argument that customs searches need not comply with the standard enunciated in Hunter v. Southam Inc. has as its basis the proposition that reasonableness depends on the circumstances under which a particular search is conducted and that searches which ordinarily would not be reasonable in other circumstances are reasonable at customs. According to this argument, reasonableness cannot be determined solely by considering the conduct leading up to the search, the performance of the actual search itself, and the degree of intrusion involved in the search. These factors must be assessed in light of the context in which the search is performed for an accurate appraisal of reasonableness.\n\n46. The Crown finds support for a contextual approach to determining reasonableness under s. 8 of the Charter in Hunter v. Southam Inc. In Hunter, the Court noted that although the common law protections against government searches were rooted in the right to enjoyment of property and were related to the law of trespass, s. 8 was designed to protect a broader interest of personal privacy. The Court noted that the Charter did not, however, grant unqualified protection of individual privacy (at pp. 159‑60):", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-46", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 46", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from \"unreasonable\" search and seizure, or positively as an entitlement to a \"reasonable\" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. [Italics added.]\n\nIn determining the reasonableness of a search, the Crown argued, it was essential to examine the expectation of privacy that would be reasonable given the peculiarities of the situation in which the search occurred. At customs, a different standard of reasonableness would be warranted for two reasons: persons seeking to enter a country have a lower expectation of privacy than they would in most other situations and, states have an important interest in preventing the entry of undesirable persons and goods which justifies more intrusive procedures, particularly where the goods are prohibited narcotics not indigenous to the country.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-47", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 47", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "47. It is true that a determination of reasonableness must depend to some degree on the circumstances in which a search is performed. In my view, however, it would be incorrect to place overwhelming emphasis on the surrounding circumstances when assessing reasonableness under s. 8. Regardless of the constraints inherent in the circumstances, the safeguards articulated in Hunter v. Southam Inc. should not be lightly rejected. Although Hunter did not purport to set down immutable pre‑ conditions for validity applicable to all searches, the Court arrived at the three minimum prior authorization requirements only after examining the values s. 8 is meant to protect. Foremost among these values is the interest in preventing unjustified searches before they occur. This is a basic value regardless of situational constraints. In light of the importance of preventing unjustified searches, departures from the Hunter v. Southam Inc. standards that will be considered reasonable will be exceedingly rare.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-48", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 48", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "48. The crux of the Crown's argument is that the reasonableness of border searches within the meaning of s. 8 ought to be treated differently from searches occurring in other circumstances. The Crown relied heavily on the rationales articulated in American cases for carving out customs procedures as a general exception to standard search and seizure protections. The dominant theme uniting these cases is that border searches lacking prior authorization and based on a standard lower than probable cause are justified by the national interests of sovereign states in preventing the entry of undesirable persons and prohibited goods, and in protecting tariff revenue. These important state interests, combined with the individual's lowered expectation of privacy at an international border render border searches reasonable under the Fourth Amendment. In my view, the state interests enunciated throughout the American jurisprudence that are deemed to make border searches reasonable, are no different in principle from the state interests which are at stake in a Canadian customs search for illegal narcotics. National self‑protection becomes a compelling component in the calculus.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-49", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 49", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "49. I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation and involve a search process beginning with completion of a declaration of all goods being brought into the country. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-50", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 50", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "50. In my view, routine questioning by customs officers, searches of luggage, frisk or pat searches, and the requirement to remove in private such articles of clothing as will permit investigation of suspicious bodily bulges permitted by the framers of ss. 143 and 144 of the Customs Act, are not unreasonable within the meaning of s. 8. Under the Customs Act searches of the person are not routine but are performed only after customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body. The decision to search is subject to review at the request of the person to be searched. Though in some senses personal searches may be embarrassing, they are conducted in private search rooms by officers of the same sex. In these conditions, requiring a person to remove pieces of clothing until such time as the presence or absence of concealed goods can be ascertained is not so highly invasive of an individual's bodily integrity to be considered unreasonable under s. 8 of the Charter .\n\n51. I also emphasize that, according to the sections in question: (i) before any person can be searched the officer or person so searching must have reasonable cause to suppose that the person searched has goods subject to entry at the customs, or prohibited goods, secreted about his or her person and (ii) before any person can be searched, the person may require the officer to take him or her before a police magistrate or justice of the peace or before the collector or chief officer at the port or place who shall, if he or she sees no reasonable cause for search, discharge the person.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-51", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 51", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "52. In light of the existing problems in controlling illicit narcotics trafficking and the important government interest in enforcing our customs laws, and in light of the lower expectation of privacy one has at any border crossing, I am of the opinion that ss. 143 and 144 of the Customs Act are not inconsistent with s. 8 of the Charter .\n\n53. Although I am of the opinion that ss. 143 and 144 of the Customs Act are not unreasonable and therefore do not infringe s. 8 of the Charter , I am not persuaded that the search itself was conducted in a reasonable manner. This point was not argued by counsel and strictly speaking, it is not necessary to address it. I wish, however, to make a few observations on the manner in which the search was conducted.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-52", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 52", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "54. The personal search provisions of the Customs Act are notable in that they provide for a second authorization prior to the performance of a search. The second authorization is not de rigueur in all cases, but becomes mandatory upon request by the person to be searched. The Customs Act places no onus on the officers to inform persons about to be searched of their right to obtain a second opinion. There is, in fact, no onus on the officers to explain the limits of their authority under the Customs Act or with what demands a person detained at the border is required to comply. In the present appeal, the customs officials did not read the text of the personal search provisions to the appellant. The officials simply pointed to a sign on the wall containing the text of ss. 143 and 144. There is no evidence that the appellant read the provisions, much less understood them. There is no indication that the appellant knew of her right to demand a second authorization. What is clear is that the appellant was unsure of the officers' authority. Although she complied with their demands throughout, at one point during the search she asked whether it was really necessary for her to comply.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-53", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 53", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "55. It is clear from the foregoing that the right to counsel has an important impact on the execution of the search. Had the appellant been informed of her right to counsel at the point she was detained, and she availed herself of that right, the appellant would have had the benefit of legal advice. Counsel could have dispelled the appellant's uncertainty surrounding the search procedure by explaining the content of ss. 143 and 144 and assuring the appellant of the officers' right to insist she remove her clothing. Counsel could also have ensured that the statutory standard of reasonable cause to suppose had been satisfied and assured the appellant that there were proper grounds to warrant a search. In my view, the denial of the appellant's right to counsel cannot avoid having an impact on the reasonableness of the subsequent search of the appellant.\n\n56. Although the Court has not been asked to decide the point, I am of the view that the denial of the right to counsel in this case in conjunction with the absence of any explanation to the appellant of her rights under the Customs Act rendered the search unreasonable. The violation of the right to counsel deprived the appellant of her ability to exercise a legal right provided in the Customs Act. A search that might not have been conducted had the appellant had the benefit of legal advice was performed in circumstances in which the appellant was ignorant of her legal position. In my view, the violation of the right to counsel combined with the statutory right of prior authorization rendered the performance of the search unreasonable.\n\nVII\n\nSection 1 of the Charter", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-54", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 54", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "57. Having earlier found that the appellant's right under s. 10( b ) of the Charter to retain and instruct counsel was infringed the next stage would ordinarily be to determine whether this violation may be justified under s. 1. I begin by noting that the Crown made no submissions on the point.\n\n58. The Customs Act contains no express limitation on the right to counsel. There was no argument that a limitation on the right to counsel arises from necessary implication of law. The limit upon the appellant's right to retain and instruct counsel was not a limit imposed by law, but rather by the actions of customs officials. I am therefore of the view that the infringement of the appellant's rights pursuant to s. 10( b ) of the Charter has not been justified under s. 1.\n\n59. I am also of the view that the violation of the appellant's s. 8 rights was not justified under s. 1 of the Charter . The violation of s. 8 occurred because the search was executed in an unreasonable manner. Like the violation of the appellant's right to counsel, the infringement of the appellant's right to be secure against unreasonable search and seizure resulted from the actions of customs officials. It was not a limitation imposed by law.\n\nVIII\n\nSection 24(2) of the Charter", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-55", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 55", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "60. The final question in this appeal is whether the evidence should be excluded under s. 24(2) of the Charter . As Lamer J. noted in R. v. Collins, [1987] 1 S.C.R. 265, the Charter enshrines a position with respect to evidence obtained in violation of Charter rights that falls between two extremes. Section 24(2) rejects the American rule that automatically excludes evidence obtained in violation of the Bill of Rights (see, for example, Weeks v. United States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961)). It also shuns the position at common law that all relevant evidence is admissible no matter how it was obtained (see R. v. Wray, [1971] S.C.R. 272). Evidence may be excluded under s. 24(2) if having regard to all the circumstances, it is established that the admission of it would bring the administration of justice into disrepute. The person seeking to exclude the evidence bears the burden of persuading the Court, on a balance of probabilities, that admission of the evidence could bring the administration of justice into disrepute in the eyes of a reasonable person, \"dispassionate and fully apprised of the circumstances of the case\" (Collins, supra, at p. 282).", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-56", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 56", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "61. In Collins, Lamer J. canvassed the factors to be balanced by the Court in determining whether introducing the evidence into the proceedings would bring the administration of justice into disrepute. He organized the factors into three groups based on their effect on the repute of the justice system. The first set of factors are those relevant to the fairness of the trial. Evidence that might in some way affect the fairness of the trial would tend to bring the administration of justice into disrepute and in general should be excluded. Within this category, Lamer J. distinguished between the type of evidence obtained (at pp. 284‑85):", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-57", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 57", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is clear to me that the factors relevant to this determination will include the nature of the evidence obtained as a result of the violation and the nature of the right violated and not so much the manner in which the right was violated. Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair. However, the situation is very different with respect to cases where, after a violation of the Charter , the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination. Such evidence will generally arise in the context of an infringement of the right to counsel. Our decisions in Therens, supra, and Clarkson v. The Queen, [1986] 1 S.C.R. 383, are illustrative of this. The use of self‑incriminating evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and should generally be excluded.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-58", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 58", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "62. The second set of factors concerns the seriousness of the Charter violation as defined by the conduct of the law enforcement authorities. In this category, an assessment of whether the breach was committed in good faith, whether it was one of a merely technical nature or whether it was deliberate and flagrant falls to be considered. Also within this category is the consideration of whether the Charter violation was motivated by circumstances of urgency or from fear of destruction of evidence. Finally, if other investigatory techniques had been available or if the evidence could have been obtained in a manner which would not have infringed the Charter , the violation would tend to be construed as more serious.\n\n63. The third set of factors recognizes the possibility that the administration of justice could be brought into disrepute by excluding evidence despite the fact that it was obtained in a manner that infringed the Charter . The decision to exclude evidence always represents a balance between the interests of truth on one side and the integrity of the judicial system on the other. In some cases the harm to the integrity of the judicial system resulting from excluding the evidence will be so great that exclusion and not admission will bring the administration of justice into disrepute. This would be the case if evidence necessary to substantiate a charge were excluded on the basis of a trivial Charter violation.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-59", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 59", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "64. In this case there were ample \"objective, articulable facts\" (see United States v. Guadalupe‑Garza, 421 F.2d 876 (9th Cir. 1970)) to support the customs officer's suspicion that the appellant was concealing something on her body for the purpose of bringing it into Canada illegally. The appellant was nervous, she had come from a country considered to be an important source of drugs, her means of identification and the story which accompanied it were suspect, and finally, bulging was obvious in the area of her upper abdomen.\n\n65. The evidence obtained as a result of the strip search was real evidence that existed irrespective of the Charter violations. As Belzil J.A. observed in R. v. Dumas (1985), 23 C.C.C. (3d) 366 (Alta. C.A.), at p. 372:\n\nWhat is sought to be excluded here is pre‑existing physical evidence which the appellant was attempting to conceal to prevent its detection and rightful seizure . . . .", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-60", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 60", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "Unlike the situation in Therens, supra, the accused here was in no way conscripted against herself. The admission of the evidence in this case, in contrast to Therens, would therefore not tend to affect adversely the fairness of the trial process. The customs officers acted in good faith based on accepted customs procedures. There was nothing deliberate or blatant in the denial of the appellant's rights. There is nothing to indicate that the customs officers treated the appellant in a discourteous fashion. In fact, the evidence reveals that the officers informed the appellant of her right to counsel as soon as they thought it was necessary to do so and gave her the opportunity to exercise that right. This Court held in R. v. Sieben, [1987] 1 S.C.R. 295, and R. v. Hamill, [1987] 1 S.C.R. 301, that constitutional invalidity of a search power does not render evidence inadmis­sible if the officers conducting the search have relied in good faith on the constitutionality of the provision. In this instance the customs officials were acting in accordance with existing statutory requirements. The breaches occurred not long after the Charter came into force and several years before the decision of this Court in Therens on the meaning of detention in s. 10(b). At the time of this search the decision of this Court in Chromiak, supra, stood for the proposition that investigative detentions of this sort were not detentions of the type requiring persons to be advised of their right to counsel.\n\n66. Although the breach of the appellant's s. 10(b) and s. 8 rights were not strictly speaking trivial, in my opinion, for the reasons given, this is the kind of case where the evidence should be admitted. Exclusion of the evidence would tend to bring the administration of justice into disrepute.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-61", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 61", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "67. I would emphasize as well that all five judges of the Ontario Court of Appeal, including Tarnopolsky J.A., were of the view that the admission of the evidence in question would not bring the administration of justice into disrepute.\n\n68. In my view, the trial judge erred in excluding the evidence under s. 24(2). I would therefore dismiss the appeal and send the case back for a new trial. I would answer the constitutional questions in the following manner:\n\n1. Is a person who is required by a customs officer upon entering Canada to submit to a search of his or her person for contraband which is suspected of being secreted about his or her person, such search being pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms , thereby requiring that such person be informed of the right to retain and instruct counsel without delay?\n\nAnswer: Yes.\n\n2. Are sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, inconsistent with a person's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms , and thereby of no force and effect to the extent of that inconsistency?\n\nAnswer: No.\n\n3. If a failure to inform a person who is searched pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, of his or her right to retain and instruct counsel without delay is in violation of s. 10 of the Canadian Charter of Rights and Freedoms , is such a violation justified by s. 1 of the Canadian Charter of Rights and Freedoms ?\n\nAnswer: No.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-62", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 62", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "4. If sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, are found to be inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms , are these sections justified by s. 1 of the Canadian Charter of Rights and Freedoms ?\n\nAnswer: Question 4 does not require an answer.\n\nThe reasons of McIntyre and L'Heureux‑Dubé JJ. were delivered by\n\n69. L'Heureux‑Dubé J.‑‑I have had the opportunity of reading the reasons of the Chief Justice, and with respect I cannot agree with his disposition of the first question in this appeal.\n\n70. The first constitutional question is set out as follows:\n\n1. Is a person who is required by a customs officer upon entering Canada to submit to a search of his or her person for contraband which is suspected of being secreted about his or her person, such search being pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms , thereby requiring that such person be informed of the right to retain and instruct counsel without delay?\n\n71. In my opinion, the answer to this question must be in the negative.\n\n72. The Chief Justice approached the issues in this case by distinguishing between three types of border searches. He found that the facts of this case fell within the second type:\n\nThe second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-63", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 63", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "73. The Chief Justice limited his remarks to this second category. He found that detention under these circumstances constituted detention within the meaning of s. 10( b ) of the Charter . I must state from the outset that I have serious reservations about the use of these categories to divide the issue. However, for the present purposes, I will limit my remarks to the second category as described by the Chief Justice.\n\n74. I cannot agree with the Chief Justice as to the applicability of s. 10(b) in this case. Detention, for the purposes of s. 10(b) is defined by Le Dain J. of this Court in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641‑42:\n\nThe purpose of s. 10 of the Charter is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10‑‑arrest and detention‑‑are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel. In its use of the word \"detention\", s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-64", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 64", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.\n\n75. With respect for the contrary opinion, I cannot accept the contention that this definition goes so far as to cover a search by a customs officer who carries out the routine procedures included in the Chief Justice's second category in order to prevent the illegal importation of goods and substances into Canada.\n\n76. In considering the question of detention, a distinction must be made between a search which occurs within Canada, and one which occurs when an individual attempts to gain admission to this country. Persons entering Canada, whether they be citizens or not, are placed in a unique legal situation at the point at which they enter the country.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-65", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 65", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "77. As noted by Howland C.J.O., individuals arriving at the border are subject to a form of restraint from the outset, in that they will be denied entry to the country until the immigration and customs officials are satisfied that they have a right to enter and that the goods and substances which they have in their possession are such as can be legally brought into Canada. The most common form of this restraint is the \"routine questioning\" which falls into the Chief Justice's first category. In the opinion of the Chief Justice, no Charter issues are raised in these circumstances. Where I would differ with the Chief Justice is in drawing the line after this first category. A more detailed search of the person of the individual entering the country is a standard and necessary part of border inspection procedures whenever there is, as stipulated in s. 143 of the Customs Act, R.S.C. 1970, c. C‑40, a \"reasonable cause to suppose that the person searched has goods subject to entry at the customs, or prohibited goods, secreted about his person.\" In the words of Howland C.J.O. (1984), 7 D.L.R. (4th) 719, at pp. 740‑41:\n\nIf a person reasonably arouses suspicion by giving the appearance of concealing something on his or her person, then he or she must expect to be asked to remove sufficient clothing to confirm or dispel this suspicion.\n\n78. The person required to undergo a strip search in these circumstances is not detained within the meaning of s. 10( b ) of the Charter .", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-66", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 66", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "79. The true meaning of detention must come from the Charter and its purpose and intent. In my view, the Therens definition would be overly broad if it was intended to cover situations at the border. The right to counsel is primarily aimed at preventing the accused or detained person from incriminating herself. Thus the main concern would be with coerced or uninformed confessions. In such circumstances, the accused would be manufacturing the evidence against herself. This is something which, in the interests of fairness, the right to counsel would seek to protect. However, a customs search occurs under circumstances where the person being searched is not in a position where she could manufacture evidence. She is not being interrogated; she is merely being searched, just as one is searched before boarding a commercial airplane on a Canadian airline. The \"right to counsel\" has less meaning in these circumstances. A further purpose of the right to counsel is illustrated by the Therens case. There, the detained person had two choices. He could submit to the test and manufacture evidence against himself, or he could refuse the test and be subject to criminal sanctions for his refusal. In such circumstances, the presence of counsel would have been necessary to inform him of his rights under each alternative, and to advise him of the best option. Again, this type of situation does not arise in a border search, although the person being searched does have a right to \"appeal\" the search to a higher customs authority, as provided in ss. 143 and 144 of the Customs Act, of which the appellant was made aware.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-67", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 67", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "80. The purpose of the right to counsel is discussed by Peter Michalyshyn in his article \"The Charter Right to Counsel: Beyond Miranda\" (1987), 25 Alta. L. Rev. 190. He quotes from the judgment of Wilson J. in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 191 of his article:\n\nIn Clarkson v. The Queen Wilson J. stated that \"This right, as entrenched in s. 10(b) of the Canadian Charter of Rights and Freedoms , is clearly aimed at fostering the principles of adjudicative fairness,\" and later, \". . . the purpose of the right, as indicated by each of the members of the court in Therens, supra, is to ensure that the accused is treated fairly in the criminal process.\"\n\n81. A border search is not part of the criminal process, but rather part of the process of entering into the country. The searched person's right to counsel would arise if and when she was placed under custody as part of the criminal process.\n\n82. Michalyshyn also compares the s. 10(b) right with the similar American right (at p. 191):\n\n[I]n the United States the right to counsel ensures that the individual facing custodial interrogation (in Canada we would substitute \"arrest or detention\") is informed of his rights so as to make a \"free and rational choice whether to incriminate himself.\" In short, the right to counsel ensures, in certain well‑defined circumstances, the individual's right against self‑incrimination.\n\n83. Using this sort of analysis, it is possible to distinguish the two types of situations. In a border search, the issue is not one of self‑incrimination. The individual is not facing \"custodial interrogation\". In my view, the right to counsel was chiefly intended for that type of situation.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-68", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 68", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "84. Therefore, given the purpose of the right to counsel, s. 10(b) clearly does not apply to a border search. The person required to undergo a strip search in these circumstances is not detained within the meaning of s. 10( b ) of the Charter .\n\n85. I do not suggest, however, that no right to counsel can ever arise in searches which occur at ports of entry. Where the purpose of the detention, interrogation, or search arises in criminal proceedings, as distinct from those concerning entry into the country, the Charter protection against unreasonable search and seizure and the right to counsel will apply. Individuals arriving at customs, however, in electing to travel outside the country or in seeking entry for the first time, have implicitly chosen to submit to the rules and procedures for leaving and entering the country. They expect, and are expected, to submit to a certain degree of inspection of their baggage, and in some cases, their person. Their situation is distinguishable from one where an individual is stopped or detained in the course of his or her normal activities within Canadian territory. It is incidents of this latter nature to which, in my view, the definition in Therens was meant to apply.\n\n86. The same issue has arisen in the United States under the American Constitution. The Chief Justice has canvassed the American jurisprudence on this point and I see no necessity to go through it again at length. I intend merely to highlight certain elements of the American case law.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-69", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 69", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "87. The Fourth Amendment protection against unreasonable search and seizure has been held in the United States not to extend to border searches. The United States Supreme Court justified this exception on the basis of national interest and the unique situation. In the words of Rehnquist J. in United States v. Ramsey, 431 U.S. 606 (1977), at p. 619:\n\nBorder searches, then, from before the adoption of the Fourth Amendment, have been considered to be \"reasonable\" by the single fact that the person or item in question had entered into our country from outside.\n\n88. On the question of national interest, the U.S. Supreme Court in Carroll v. United States, 267 U.S. 132 (1925), stated, at pp. 153‑54:\n\nTravellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.\n\n89. These considerations are crucial in drawing a distinction between stopping a person at the border and detaining someone within the country. They are also significant in underlining the valid national interests behind any distinction. Customs officials at border crossings are, in most cases, the last possible check on the importation of harmful and illicit substances into the country. There is no question that the importation of drugs into this country from abroad contributes significantly to a problem which is of serious national concern. The scope of this problem, in the context of the border situation, is highlighted by Howland C.J.O., supra, at p. 725:", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-70", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 70", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "By agreement of counsel, evidence was furnished by Superintendent Wilson that between April 1, 1982 and March 31, 1983, there were 442 drug seizures at the Toronto International Airport, of which 80% were cannabis seizures from Jamaica flights.\n\n90. It is my view that the same circumstances and conditions which have moved the American courts to exempt border searches from the Fourth Amendment protection are operative here. I would agree with the majority that ss. 143 and 144 of the Customs Act are not unreasonable and therefore do not infringe s. 8 of the Charter . In my view, the appellant was sufficiently informed of her right to appeal the search to a higher customs authority when she was shown the text of ss. 143 and 144. Because of this and because I find that the accused was not detained within the meaning of s. 10( b ) of the Charter , I cannot agree with the majority's position that the search was conducted in an unreasonable manner.\n\n91. Thus, while I concur in the result reached by the majority of the Court, for the reasons above, I respectfully disagree with the finding that the appellant was detained within the meaning of s. 10( b ) of the Charter .\n\n92. Consequently, I would answer the constitutional questions as follows:\n\n93. Question 1: No.\n\n94. Question 2: No.\n\n95. Questions 3 and 4: Do not require an answer.\n\nThe following are the reasons delivered by\n\n96. Wilson J.‑‑I have had the benefit of the reasons of both the Chief Justice and Justice L'Heureux‑Dubé and I am in agreement with the result reached by the Chief Justice and with some of his reasons.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-71", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 71", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "97. I agree with the Chief Justice that the appellant was \"detained\" within the meaning of s. 10( b ) of the Canadian Charter of Rights and Freedoms when she was forced to submit to a strip search and that she should have been informed of her right to retain and instruct counsel at that time. I also agree with the Chief Justice that ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, are not inconsistent with s. 8 of the Charter . I agree with him also that the admission of the evidence of the drugs found on the person of the appellant as a result of the strip search would not \"bring the administration of justice into disrepute\" within the meaning of s. 24(2).\n\n98. I prefer, however, to give my own reasons on the reasonableness of the strip search under s. 8.\n\n99. The constitutionality of the strip search of the appellant cannot, in my view, be determined solely on the basis of whether there has been compliance with the statutory search provisions of ss. 143 and 144 of the Customs Act. These statutory provisions must be read in conjunction with the obligation under s. 10( b ) of the Charter to inform those who are detained of their right to retain and instruct counsel without delay and to respect that right. I say that because in R. v. Therens, [1985] 1 S.C.R. 613, this Court stated at p. 621 that any limit on the constitutionally guaranteed right to counsel, if it is to be valid under s. 1 of the Charter , has to be \"prescribed by law\". Le Dain J. went on to explain what this meant at p. 645:", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-72", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 72", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements.\n\nIn R. v. Thomsen, [1988] 1 S.C.R. 640, the Court, speaking through Le Dain J., unanimously adopted his view at p. 651:\n\nI remain of the view that a limit prescribed by law within the meaning of s. 1 may result by implication from the terms of a legislative provision or its operating requirements. It need not be an explicit limitation of a particular right or freedom.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-73", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 73", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "100. There is no such limit on the appellant's s. 10(b) rights, either expressed in ss. 143 and 144 of the Customs Act or necessarily implied from the terms of these sections or from their operating requirements. There is nothing in these sections which is incompatible with the right to counsel, nor do their operating requirements preclude such right. Section 143 of the Customs Act permits a search when the customs officer \"has reasonable cause to suppose that the person searched has . . . prohibited goods, secreted about his person\". Section 144 provides \"[b]efore any person can be searched, the person may require the officer to take him before a police magistrate or justice of the peace, or before the collector or chief officer at the port or place, who shall, if he sees no reasonable cause for search, discharge the person\". These statutory provisions do not purport to impose a limit or attempt to preclude resort to the right to counsel and are completely compatible with the appellant's s. 10(b) rights. Yet the appellant was not afforded the opportunity to contact her counsel before she was strip searched.\n\n101. As the Chief Justice points out, the appellant was detained during the strip search in the sense that she was not free to leave and was subject to external restraint and control throughout the strip search. The appellant was denied her right to retain and instruct counsel without delay and her right to be informed of that right. Only after the search disclosed the presence of drugs on her person and she was arrested for importing narcotics was she informed of her right to counsel and did in fact telephone counsel.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-74", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 74", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "102. In my view, the violation of the appellant's s. 10(b) rights prior to the search renders the search unconstitutional given the complete compatibility of the authorizing statutory search provisions with the right to retain and instruct counsel without delay which is guaranteed in the Constitution. An unconstitutional search cannot be a reasonable one.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-75", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 75", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "103. Although the unconstitutionality of the search renders the search per se unreasonable, I would add that the manner in which the search was conducted in this case was also unreasonable in light of the values and purposes protected by s. 8 of the Charter . It is, in my view, unreasonable for a detained person to be simply directed to a sign on the wall of a search room setting out the legal provisions which authorize the search of his or her person. It is hardly surprising on the facts of this case that there is no indication that the appellant even read the provisions of ss. 143 and 144 of the Customs Act posted on the wall let alone exercised the legal options and rights conferred in those provisions. A person who is detained and about to be searched can hardly be expected to be his or her own lawyer. Recourse to legal assistance in such circumstances will often be essential in order to ensure that citizens are protected from unreasonable searches and seizures: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160. If the appellant had been informed of her right to consult counsel, counsel could have explained to her the right under s. 144 of the Customs Act to request higher authorization for the search and advised her as to whether or not she should exercise it. This would have furthered the purpose of s. 8 in preventing unreasonable searches. As the circumstances of this case show, the right to counsel could be highly useful in facilitating the effective and fair operation of the statutory search provisions, in particular the higher authorization procedure provided for in s. 144. In this case the appellant's right to counsel was not respected and, not surprisingly, her rights under s. 144 were not exercised.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-377-76", + "doc_type": "caselaw", + "act_code": "[1988] 2 SCR 495", + "act_short": "Simmons", + "act_name": "R. v. Simmons", + "section": "", + "citation": "R. v. Simmons, [1988] 2 SCR 495", + "marginal_note": "excerpt 76", + "heading": "Customs searches at the border; Charter s. 8 and the reasonable expectation of privacy on entry to Canada", + "part": "Supreme Court of Canada", + "division": "", + "text": "104. This Court has recognized that the values protected by s. 8 are not limited to those of privacy: see Hunter v. Southam Inc., at p. 159. This case points up some of the additional values that are at stake in protecting people from unreasonable searches and seizures. During the actual strip search the appellant attempted to put forth a protest as to whether the removal of the bandages was \"really necessary\" before she complied. The concern in s. 8 about preventing unreasonable searches and seizures is tied to a broader concern reflected in many of the legal rights in the Charter to prevent the citizen from being overborne by the much greater power of the state. The availability of legal assistance is crucial in preventing this from happening. It is instructive to note in this case that after the strip search was completed, the drugs discovered and the appellant arrested for importing narcotics, she immediately contacted counsel when informed of her right to do so. Her earlier protests at the strip search suggest that she might well have exercised that right before or during the search had she been advised of it at that time.\n\n105. I add as a final comment that in advancing the commendable purpose of rendering all citizens secure from unreasonable searches and seizures courts should not be unduly influenced by hindsight, i.e., by the fact that many of the searches and seizures which come before us have in fact resulted in the discovery of evidence of criminal activity. The level of protection afforded to the citizen under s. 8 of the Charter must be geared to the innocent as well as to the guilty.\n\nAppeal dismissed.", + "current_to": "1988-12-08", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/377/index.do" + }, + { + "id": "scc-1694-1", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 1–2", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Iacobucci J. -- This appeal deals with the authority of customs officers to detain and search travellers suspected of having swallowed narcotics. More specifically, the Crown appeals the decision of the Ontario Court of Appeal overturning the conviction of the respondent for importing narcotics contrary to s. 5(1) of the Narcotic Control Act, R.S.C., 1985, c. N-1. There is no dispute that the respondent attempted to smuggle a significant quantity of heroin into Canada by swallowing 84 pellets containing the narcotic prior to his arrival from Switzerland. The respondent was convicted at trial but successfully argued on appeal that his rights under s. 8 of the Canadian Charter of Rights and Freedoms had been infringed, and that the evidence concerning the narcotics should be excluded pursuant to s. 24(2) of the Charter . I. Facts\n\nThe respondent arrived at Pearson International Airport on March 13, 1993 at approximately 4:00 p.m. Sometime prior to his arrival, the respondent had ingested 84 pellets, each containing approximately five grams of heroin that had been wrapped in condoms. When he presented himself to customs officials, the primary customs inspector marked his documentation with a code indicating “doubt” and subsequently referred him to a secondary customs area for further questioning. At the time of trial, the primary customs inspector could not recall the reason for the referral, but agreed that the marked code did not relate to smuggling narcotics.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-2", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 3", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The respondent arrived at the secondary customs counter at 4:30 p.m. where he was interviewed by Inspector Roberts. Having questioned the respondent and inspected his travel documents and luggage, Inspector Roberts became suspicious concerning certain details of the respondent’s travel arrangements. The respondent had paid $688.00 by cheque for an airline ticket issued on the date of departure which indicated that the ticket was purchased in haste. The respondent stated that he was employed as a taxi driver, and that he had been out of the country visiting a sick cousin in Switzerland. Inspector Roberts thought it was suspicious that a person in a relatively low-paying job would be able to afford to fly to Switzerland, let alone to do so simply to visit a distant relative. Also suspicious to Inspector Roberts was the fact that the respondent’s passport showed his place of birth as Ghana, given Inspector Roberts’ informal knowledge of Switzerland as a “transit routing” country for narcotics and Ghana as a source country. He asked the respondent if he had been to Ghana during his period of travel outside of the country and the respondent replied that he had not.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-3", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 4–5", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Inspector Roberts also testified that other aspects of the respondent’s behaviour aroused his suspicions. The respondent appeared nervous during the interview, had not declared a bottle of alcohol in his possession, and had no checked baggage, although Inspector Roberts did admit that the last two factors alone do not raise a reasonable suspicion that a traveller is a drug courier. At this point, Inspector Roberts asked the respondent if he had a criminal record, and the respondent replied that he did not. Inspector Roberts subsequently obtained permission from his superior officer to conduct a computer check on the respondent, the results of which disclosed that the respondent had been charged with incest but had not as yet been tried. When Inspector Roberts returned to continue questioning the respondent, the respondent volunteered that he had been charged with assault, and also admitted that he had been to Ghana to visit his mother, despite his earlier denial of having been there.\n\nIt was at this point that Inspector Roberts decided he had sufficient grounds to detain the respondent as a suspected drug courier, and informed him of his right to counsel. Having first obtained permission from his superior officer, Inspector Roberts then contacted Interdiction and Intelligence, a unit of Canada Customs experienced in dealing with narcotics smuggling. Although customs officers from the Interdiction and Intelligence unit are normally expected to respond to a call for assistance as soon as possible, in this instance the officers did not arrive until approximately two hours later. In the interim, the respondent was detained in the secondary customs area.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-4", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 6–7", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "At 6:24 p.m., Customs Enforcement Officers Martin and Carrillo of Interdiction and Intelligence took custody of the respondent, placed him under detention, and informed him of his right to counsel. Officer Martin testified that he had formed the opinion that the respondent was a “good prospect as a drug swallower”, and that he “suspected” that the respondent had swallowed drugs. He based this opinion not only on the same information relied upon by Inspector Roberts, but also on his suspicion that the respondent may have been using two passports, given that the passport he presented at Customs did not contain a stamp from Ghana although the respondent admitted to travelling to Ghana during his time out of the country.\n\nOfficers Martin and Carrillo then took the respondent to what is known as the “drug loo facility”. The facility, which is used to process suspected drug swallowers, contains an apparatus similar to a toilet which permits customs officers to process faecal matter and isolate any narcotics and associated material which passes through a suspect’s digestive system during the period of detention. The respondent was informed of his right under s. 98(2) of the Customs Act , R.S.C., 1985, c. 1 (2nd Supp .), to be taken before the senior Customs officer for confirmation that reasonable grounds exist to suspect that a traveller has attempted to smuggle prohibited material across the Canadian border. He declined to exercise this right. The respondent was then strip-searched by Customs Enforcement Officer Martin. Nothing was found as a result of this search.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-5", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 8", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "At 6:45 p.m., Officers Martin and Carrillo sought the respondent’s consent to a urine test. The respondent declined to provide consent, and at this time the officers informed the respondent that he would remain in detention until either a negative urine test or clear bowel movement satisfied the officers that the respondent had not ingested narcotics. At 8:30 p.m., the respondent requested permission to contact his lawyer. He then had a telephone conversation with his lawyer which lasted from 8:34 p.m. until 8:50 p.m. Following the telephone call, the respondent agreed to provide a urine sample and signed the consent form. The sample was collected at 9:18 p.m., and testing confirmed the presence of heroin. At this point, Officers Martin and Carrillo arrested the respondent, who then confessed to ingesting approximately 84 pellets of heroin. Following a second telephone call to his lawyer at 9:25 p.m., the respondent began to excrete the pellets. By 1:50 a.m., when the respondent had passed 83 of the pellets, he was transferred into the custody of the RCMP. He later passed one further heroin pellet while in their custody.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-6", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 9–10", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "At one point during the respondent’s detention, prior to taking the urine test, one of the officers noted that the respondent appeared to be falling asleep. The respondent was asked whether he was feeling all right, as one of the officers became concerned that the respondent’s apparent fatigue might have been an indication of heroin intoxication. The respondent responded that he felt fine, and was instructed to tell the officers if he felt any stomach pains so that they could call a doctor. The officers testified that if the respondent had appeared to be in physical distress, or had asked to see a doctor, he would have been taken to a hospital right away, but the respondent did not at any time make such a request.\n\nNone of the various customs officers who dealt with the respondent following his arrival at Pearson International Airport was aware of the written protocol contained in the Customs Enforcement Manual which provides that because of the dangerous health risk, travellers suspected of ingesting narcotics are to be detained in the presence of qualified medical personnel. Instead, the officers followed the conflicting port policy whereby a detained traveller is not taken to a medical facility unless the traveller makes such a request or appears to be in physical distress. There was also expert testimony to the effect that hospitalization would have been the prudent course of action in the circumstances. II. Relevant Constitutional and Statutory Provisions", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-7", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 11", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Canadian Charter of Rights and Freedoms 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. 24. . . . (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Customs Act 98. (1) An officer may search (a) any person who has arrived in Canada, within a reasonable time after his arrival in Canada, (b) any person who is about to leave Canada, at any time prior to his departure, or (c) any person who has had access to an area designated for use by persons about to leave Canada and who leaves the area but does not leave Canada, within a reasonable time after he leaves the area, if the officer suspects on reasonable grounds that the person has secreted on or about his person anything in respect of which this Act has been or might be contravened, anything that would afford evidence with respect to a contravention of this Act or any goods the importation or exportation of which is prohibited, controlled or regulated under this or any other Act of Parliament. (2) An officer who is about to search a person under this section shall, on the request of that person, forthwith take him before the senior officer at the place where the search is to take place.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-8", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 11–12", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "(3) A senior officer before whom a person is taken pursuant to subsection (2) shall, if he sees no reasonable grounds for the search, discharge the person or, if he believes otherwise, direct that the person be searched. III. Judgments Below A. Ontario Court (General Division), [1994] O.J. No. 1429 (QL)\n\nIn an oral ruling on a voir dire, Belleghem J. was satisfied that the criteria for a reasonable search and seizure within the meaning of s. 8 of the Charter and the tests established in R. v. Storrey, [1990] 1 S.C.R. 241, and R. v. Collins, [1987] 1 S.C.R. 265, were met. The search was authorized by law pursuant to s. 98 of the Customs Act , the law itself was reasonable and the search was carried out in a reasonable manner. Relying on a statement in obiter by Lamer J. (as he was then) in R. v. Greffe, [1990] 1 S.C.R. 755, to the effect that the standard for justification would be met if a suspected drug swallower was detained for the purposes of allowing nature to take its course on the basis of belief based on reasonable and probable grounds, Belleghem J. also held that the respondent was not subject to arbitrary detention in violation of s. 9 of the Charter .", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-9", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 13", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Belleghem J. next considered the respondent’s submission that his rights under s. 7 were violated because his detention was not conducted under adequate medical supervision. Belleghem J. was satisfied that “throughout the entire period of his detention with the custodial authorities, either customs or police, he was in a serious life threatening situation” (para. 27). He found that the respondent was fully aware of the risk to his own health, however, and noted that medical treatment was available at all times. Belleghem J. accordingly rejected the submission that a self-imposed threat to physical health or safety imposes on custodial authorities a constitutional obligation to provide medical supervision. The customs officers took reasonable steps in monitoring the respondent and informing him that medical attention would be provided if required, or at the respondent’s request. Belleghem J. concluded that medical assistance must be given if requested, or if such assistance appears to be reasonably necessary, but s. 7 does not otherwise operate to provide the respondent with a charter of medical rights. Accordingly, Belleghem J. held that there was no s. 7 violation. In the alternative, if the respondent’s rights under s. 7 had been violated, he held that the evidence should not be excluded under s. 24(2). The heroin pellets constituted real evidence obtained without conscripting the respondent, and the officers were acting in good faith in following the “port policy” at Pearson International Airport, notwithstanding that this policy conflicted with the official Customs Enforcement Manual. B. Ontario Court of Appeal (1997), 105 O.A.C. 1 (1) Rosenberg J.A. (Morden A.C.J.O. concurring)", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-10", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 14", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The central question as formulated by Rosenberg J.A. was “whether customs officers have the power to detain a person suspected of having swallowed drugs until the suspicions have been confirmed or the traveller has satisfied the officers that he or she is not carrying drugs” (p. 15). Rosenberg J.A. concluded that s. 98 of the Customs Act did not authorize the detention and search to which the respondent was subjected by the customs officers. The officers had at most reasonable grounds to suspect that the respondent was attempting to smuggle narcotics into Canada; they did not have reasonable grounds to believe that an offence had been committed. Mere suspicion, no matter how reasonable, is not sufficient to justify for the purposes of s. 8 the detention and search which took place.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-11", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 15", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Rosenberg J.A. analysed several issues in arriving at this conclusion. He first determined that there was no legal basis for detaining the respondent from 4:30 p.m. until his arrest at 9:18 p.m. After reviewing the requirements for a warrantless arrest established in Storrey, supra, and R. v. Feeney, [1997] 2 S.C.R. 13, he concluded that Inspector Roberts did not have the necessary reasonable and probable grounds upon which to base the arrest, having formed instead only a reasonable suspicion that the respondent had ingested narcotics. Rosenberg J.A. therefore concluded that the customs officers were not authorized by s. 98 of the Customs Act to detain the respondent. Section 98 provides customs officers with the authority to conduct a search alone, with the power to detain a traveller arising only by necessary implication pursuant to s. 31(2) of the Interpretation Act , R.S.C., 1985, c. I-21 . In other words, a customs officer may detain a traveller for the length of time necessary to conduct a search, but the condition precedent of such a detention is that the search itself be a valid exercise of authority under s. 98. The strip search of the respondent, therefore, was not authorized by s. 98, which permits a search only when a customs officer has a reasonable suspicion that a traveller has contraband “on or about his person”. Citing decisions of this Court concerning the seriousness of violations of bodily integrity, Rosenberg J.A. concluded that the phrase “on or about his person” was not sufficiently broad in scope so as to include contraband which is ingested and therefore located “within” the person.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-12", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 16–17", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Rosenberg J.A. then addressed the respondent’s submission that the seizure of the urine sample prior to the respondent’s arrest violated his rights under ss. 7 and 8 of the Charter . He found that the respondent did not voluntarily consent to the taking of a urine sample as he was led to believe that his detention would continue until evidence of either his guilt or innocence was established by a urine test or a bowel movement. Relying on Cory J.’s reasoning in R. v. Stillman, [1997] 1 S.C.R. 607, that a suspect’s refusal to consent to the collection of bodily samples while in custody becomes meaningless if, because of his detention, he cannot prevent those samples from being taken, Rosenberg J.A. held that the taking of the urine sample violated the respondent’s rights under s. 8 and may also have constituted a violation under s. 7. Since the customs officers would not have possessed reasonable and probable grounds to believe that the respondent had committed an offence except for the results of the unlawful urine test, the arrest of the respondent at 9:18 p.m. was also unlawful.\n\nHaving found the arrest to be unlawful, Rosenberg J.A. next considered whether the subsequent seizure of the heroin violated the respondent’s rights under s. 8. The Crown sought to justify the seizure either under the search power incidental to arrest, or under s. 98 of the Customs Act . Rosenberg J.A. held that the seizure could not be justified under the common law search power as the arrest itself was not lawful. Furthermore, the seizure was not authorized under s. 98 as it was not conducted “within a reasonable time” after the respondent’s arrival in Canada as is required by the provision.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-13", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 18", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, Rosenberg J.A. considered whether the failure to conduct the detention under medical supervision violated the respondent’s rights under s. 7. Rosenberg J.A. expressed some concern as to the correctness of the trial judge’s decision on this point, but noted that he did not need to address the potential s. 7 violation. Having already concluded that the evidence had been obtained in violation of the respondent’s rights under s. 8, the issue could be included within the necessary s. 24(2) analysis. Rosenberg J.A. noted that the trial judge held that had the respondent’s rights been violated under s. 7, he would still have admitted the evidence under s. 24(2). While recognizing that an appellate court should not interfere with a trial decision on the application of s. 24(2) unless the trial judge makes an unreasonable factual finding or a legal error, Rosenberg J.A. noted that the trial judge erroneously viewed the respondent as having been lawfully detained and searched. Consequently, it was open to the appellate court to review the trial judge’s conclusions concerning exclusion of the evidence under s. 24(2).", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-14", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 19", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Following the decision of this Court in Stillman, Rosenberg J.A. found that the evidence was conscripted in that production of the evidence required the forced participation of the respondent. The admission of the evidence would therefore affect the fairness of the trial and should have been excluded. In the alternative, the pattern of disregard shown by the customs officers towards the rights of the respondent exacerbated the seriousness of the violations, notwithstanding that the officers acted in good faith. In considering the effect that exclusion would have on the administration of justice, however, Rosenberg J.A. noted the seriousness of the charge, the necessity of the heroin as the only evidence against the respondent and the fact that the customs officers did not set out to abuse the criminal justice system. In the final analysis, the factors going to the seriousness of the violation of the respondent’s Charter rights and the potential effect of exclusion on the administration of justice were evenly balanced. Rosenberg J.A. therefore concluded that if the evidence was non-conscriptive, in which case the fairness of the trial would not be a factor, then the heroin was properly admitted into evidence. (2) Weiler J.A. (dissenting)", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-15", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 20–21", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Weiler J.A. found that the strip search and the collection of the respondent’s bodily waste were authorized by s. 98 of the Customs Act , and that the search and seizure were reasonable within the meaning of s. 8 pursuant to the factors enumerated in Collins. According to Weiler J.A., s. 98 authorized the detention of the respondent in order to conduct a search which included seizure of the urine sample. Section 98 permits searches in circumstances where a customs officer suspects on reasonable grounds that a person has secreted contraband “on or about his person”, a phrase Weiler J.A. interprets to include material a person has ingested and therefore secreted within his or her person. The search also took place within a reasonable time after the respondent’s arrival in Canada, having regard to the length of the period of detention and the type of search required.\n\nAs to whether the “bedpan vigil” conducted by the customs officers was constitutionally valid pursuant to s. 8, Weiler J.A. referred to the three categories of border searches enumerated by Dickson C.J. in R. v. Simmons, [1988] 2 S.C.R. 495. Detaining a traveller in a “drug loo facility” is a less invasive search technique than those included by Dickson C.J. in the third and most intrusive category of border searches, such as X-rays or the administration of emetics. Accordingly, the search conducted by the customs officers in this case belonged in the second category as being analogous to a strip search. A passive “bedpan vigil” is the least intrusive means of monitoring the alimentary canal in circumstances where there is a real danger of losing evidence and where the protection and safety of the public are of primary concern.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-16", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 22–24", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, Weiler J.A. concluded that the respondent’s rights under s. 7 were not violated. It was the respondent’s refusal of the offer of medical attention which endangered his safety, and not his detention per se. Although the respondent was deprived of his physical liberty, he was not deprived of the liberty to make his own health decisions, regardless of whether these decisions were in his own best interest. Medical attention was offered, the respondent knew the specifics of his own self-induced situation and he had the advice of counsel.\n\nAs to the application of s. 24(2), Weiler J.A. held that in the event that the manner of search was unreasonable, the good faith of the customs officers in carrying out the search required the evidence to be admitted. IV. Issues\n\nAs noted above, this appeal concerns the question of whether customs officers have the authority to detain a traveller suspected of having swallowed narcotics until the suspicion has either been confirmed or the traveller satisfies the officers that he or she is not carrying narcotics. In the context of this appeal, this question raises the following issues: a. Were the actions of the customs officers authorized by s. 98 of the Customs Act ? b. Does s. 7 of the Charter require that the detention of a traveller who is believed to have swallowed narcotics be conducted under medical supervision? c. If the accused’s Charter rights were violated, should the evidence of the heroin pellets have been excluded at trial pursuant to s. 24(2)? V. Analysis A. Were the actions of the customs officers authorized by s. 98 of the Customs Act ? 1. Does the phrase “secreted on or about his person” in s. 98 of the Customs Act authorize customs officers to search for narcotics which they suspect a traveller has ingested?", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-17", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 25", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "In order to assess whether the search conducted by the customs officials on the respondent was authorized by s. 98 of the Customs Act , it is necessary first to determine whether the phrase “on or about his person” in s. 98(1) refers not only to contraband which is concealed by a traveller in luggage, under clothes or in some other manner external to the traveller’s body, but includes as well contraband which the traveller has ingested. The respondent argues that as a matter of common parlance, standard dictionary definitions of the words “on” and “about” do not support an interpretation of the phrase “on or about his person” which is sufficiently broad to include items which a traveller has ingested and which are subsequently located internally within the traveller’s digestive system. Further, s. 98 requires a customs official to conduct the search “within a reasonable time”. The respondent argues that the inclusion of a time restriction within s. 98 necessarily leads to the conclusion that the phrase “on or about his person” is not meant to apply to ingested narcotics. A passive “bedpan vigil” such as was necessary to confirm the presence of heroin pellets within the respondent’s digestive tract at the time he attempted to cross the Canadian border involves a lengthy detention process and therefore cannot be conducted “within a reasonable time”.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-18", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 26", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Admittedly, statutory interpretation in the context of constitutional review is not an exact science. While reference to common parlance and standard dictionary definitions are often of assistance in interpreting legislative provisions, regard must be had not only to the ordinary and natural meaning of the words, but also to the context in which they are used and the purpose of the provision as a whole: R. v. Lewis, [1996] 1 S.C.R. 921. The most significant element of this analysis is the determination of legislative intent. In light of these guidelines, the respondent’s interpretation of the phrase “on or about his person” is, with respect, misguided. As Weiler J.A. noted in her dissenting judgment in the Court of Appeal, when read in context, the words “on or about his person” are contained within the larger phrase “secreted on or about his person”. In my view, an examination of this context demonstrates that Parliament intended to confer authority on customs officers, so far as the Charter permits, to search for prohibited material not only on or about the surface of the traveller’s body, but also secreted or concealed within the traveller’s body. Fundamentally, the legislative intent of s. 98 was to grant officers the necessary authority to control the smuggling of contraband into Canada. As this Court reiterated in Lewis, a legislative phrase should be given a meaning consonant with the purpose of the statutory provision unless the contrary is indicated, provided, of course, that such an interpretation is consistent with constitutional limitations and conventional rules of interpretation.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-19", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 27", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The respondent’s suggested interpretation of s. 98 is unnecessarily restrictive, in terms of both the literal text and Parliamentary intent. The provision does not refer to a traveller who has “placed” items on or about his or her person, in which case a more compelling argument could be made that the legislative intent was to restrict the authority of customs officers to searches of a person’s exterior physical body and associated personal effects. Instead, the English version of the provision refers to material which the traveller has “secreted” on or about his or her person. The verb “secrete” refers to the act of placing material into a concealed location: Concise Oxford Dictionary (9th ed. 1995). The French text confirms this interpretation, as the verb “dissimuler” refers to the act of hiding (cacher) or concealing (celer): Le Nouveau Petit Robert (1996). The concept of concealment, rather than the distinction between the interior or exterior of the traveller’s physical body, is the fulcrum of the search power in s. 98 of the Act.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-20", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 28–29", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Parliament’s intent in extending the authority of customs officers to search for any concealed material, whether located internal or external to the traveller’s physical body, is further supported by the illogical outcome that would ensue if the Court were to adopt a more restrictive interpretation. A traveller intent on smuggling narcotics across the Canadian border would be able to defeat the purpose of the provision simply by concealing contraband inside his or her mouth rather than under his or her clothing or elsewhere on his or her body. Interpreting s. 98 in light of the provision’s purpose, which is to restrict the entry of contraband material into Canada, the phrase “secreted on or about his person” cannot have been intended to permit such an absurd result. 2. Does s. 98 of the Customs Act authorize a search in the manner conducted by the customs officers whereby a traveller is detained in a “drug loo facility” until a suspicion of ingesting narcotics is confirmed or dispelled?\n\nThe actions of the customs officers in detaining the respondent in a “drug loo facility” and collecting the pellets which passed through his system amounted to a search and seizure for the purposes of s. 8 of the Charter . Pursuant to the Court’s decision in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, prior authorization is a necessary precondition for a constitutionally valid search and seizure. A warrantless search or seizure is therefore prima facie unreasonable under s. 8, and the Crown bears the onus of rebutting the presumption of unreasonableness by demonstrating that its actions were authorized by law, that the law itself was reasonable and that the search was carried out in a reasonable manner: Collins, supra.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-21", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 30–31", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Crown submits that the actions of the customs officers were reasonable in that they were authorized by s. 98 of the Customs Act . Section 98 permits customs officers to search a traveller provided there exists a reasonable suspicion that contraband has been “secreted on or about his person” and that the search occurs “within a reasonable time” of the traveller’s arrival in Canada. The constitutionality of s. 98 itself is not in issue in this appeal. The relevant question for determination instead is whether the actions of the customs officers in detaining the respondent in a “drug loo facility” are within the scope of permissible activities authorized by s. 98. The respondent contends that s. 98 is meant to apply only to brief, non-intrusive searches such as a pat-down or at most a strip search, and cannot be read as authorization for the ostensibly lengthy detention and intrusive procedures carried out by the customs officers in this situation.\n\nSection 98 of the Customs Act provides customs officers with the necessary authority to search travellers suspected of transporting narcotics across the border, but does not define the manner in which a search may be carried out. Nonetheless, as the following passage from the reasons of Lamer J. (as he was then) in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078, indicates, statutory provisions are to be interpreted in a manner which is consistent with the Charter : Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter , there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-22", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 32", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Accordingly, the alternatives available for customs officials in attempting to ascertain whether a traveller has indeed ingested narcotics are subject to constitutional limitations. Section 98 should not be interpreted, so far as is possible, in a manner which would permit customs officers to violate a traveller’s rights under s. 8 of the Charter . The task of the Court in the present appeal is to determine whether the manner of search carried out against the respondent comes within these limitations.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-23", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 33", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Simmons, supra, the Court considered the constitutional requirements of searches conducted at the Canadian border by customs officers. The accused had submitted that her rights under s. 8 of the Charter were violated when she was subjected to a strip search based on the customs officer’s reasonable suspicion that she was attempting to smuggle narcotics into Canada. The relevant statutory provisions were ss. 143 and 144 of the former Customs Act, R.S.C. 1970, c. C‑40, which permitted customs officers to conduct personal searches absent prior judicial authorization and to initiate such searches on the basis of a standard falling short of reasonable and probable grounds. At issue in particular was whether these provisions were constitutionally valid given that they did not meet the three criteria of a reasonable search and seizure articulated in Hunter, supra: (a) where possible, the search must be approved by prior authorization; (b) the person authorizing the search need not be a judge, but must be in a position to act in a judicial manner, i.e. the person must be able to assess in a neutral and impartial fashion whether on the evidence available a search is appropriate; and (c) there must be reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that evidence of the offence is to be found at the location to be searched.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-24", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 34", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Court concluded in Simmons that, although the constitutional safeguards articulated by the Hunter standard should not be rejected lightly, the framework established in Hunter for analysing the reasonableness of a search for the purposes of s. 8 was inapplicable to border searches. Dickson C.J. accepted the proposition established in United States jurisprudence that border searches should be distinguished from searches occurring in other circumstances in which the security of Canada’s interior is not engaged. He expressed his agreement with this distinction as follows, at pp. 527-28: The dominant theme uniting these cases is that border searches lacking prior authorization and based on a standard lower than probable cause are justified by the national interests of sovereign states in preventing the entry of undesirable persons and prohibited goods, and in protecting tariff revenue. These important state interests, combined with the individual’s lowered expectation of privacy at an international border render border searches reasonable under the Fourth Amendment. In my view, the state interests enunciated throughout the American jurisprudence that are deemed to make border searches reasonable, are no different in principle from the state interests which are at stake in a Canadian customs search for illegal narcotics. National self-protection becomes a compelling component in the calculus.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-25", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 35", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Dickson C.J. also referred to the caveat expressed in the reasons in Hunter that the reasonableness of a search must be assessed in context. The relevant qualification of the reasonableness standard as stated in Hunter is that the standard of reasonableness is subject to change \"[w]here the state's interest is not simply law enforcement as, for instance, where state security is involved, or where the individual's interest is not simply [an] expectation of privacy as, for instance, when the search threatens . . . bodily integrity\" (p. 168). Adopting a contextual approach to the assessment of reasonableness for the purposes of s. 8, the Court concluded in Simmons that the degree of personal privacy reasonably expected at border crossings is lower than would otherwise be available in a wholly domestic setting.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-26", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 36", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Simmons, Dickson C.J. summarized the balance between a state’s interest in preventing the flow of contraband across its borders and the individual’s privacy interests as protected by s. 8 of the Charter as follows, at p. 528: I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation and involve a search process beginning with completion of a declaration of all goods being brought into the country. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-27", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 37", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my opinion, the decision of the Court in Simmons governs the issue raised in the present appeal. Whereas s. 143 of the previous Act referred to whether a customs officer has “reasonable cause to suppose” that a traveller has prohibited material “secreted about his person”, and s. 98 of the current Act refers instead to whether a customs officer “suspects on reasonable grounds” that the person has prohibited material “secreted on or about his person”, these provisions are sufficiently similar to apply the analytical framework from Simmons to determine the outcome of this appeal. I say this notwithstanding the assertion made by Dickson C.J. in Simmons that s. 98 of the current Act changed the standard from one of suspicion in the former to reasonable grounds in the present Act, an assertion with which I do not agree.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-28", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 38", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "In assessing the constitutionality of a strip search conducted on a person travelling through Canada Customs, Dickson C.J. in Simmons correlated three categories of border searches, based on the degree of intrusion into personal privacy and bodily integrity, with an increasing threshold of constitutional justification. In other words, the more intrusive the search, the greater the degree of constitutional protection required in terms of the standard of suspicion or belief which must be met prior to subjecting a traveller to a search by customs officers. Dickson C.J. articulated the necessary correlation as follows, at pp. 516-17: It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X‑rays, to emetics, and to other highly invasive means.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-29", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 38–39", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "I wish to make it clear that each of the different types of search raises different issues. We are here concerned with searches of the second type and what I have to say relates only to that type of search. Searches of the third or bodily cavity type may raise entirely different constitutional issues for it is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection. I turn now to a consideration of the appellant's specific Charter claims.\n\nDickson C.J. concluded that the standard of “reasonable cause to suppose” in s. 143 of the prior Act authorized border searches in both the first and second categories. No determination was made as to the degree of constitutional scrutiny required for the third category of intrusive border searches, nor is it necessary at this time to decide whether s. 98 of the current Act authorizes customs officers to adopt invasive techniques such as X-rays, emetics or the intervention of medical doctors. I conclude that the actions of the customs officers in detaining the respondent in a “drug loo facility” and conducting what could be characterized as a “bedpan vigil” amounted to a search within the second category.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-30", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 40", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The respondent has urged the Court to find that compelling a traveller who is suspected of swallowing narcotics to provide a urine sample or a bowel movement under supervision is not simply a passive vigil but constitutes state interference with a person’s bodily integrity by seizing or otherwise making use of bodily samples. The respondent relied for support on the decision of the Court in Stillman, supra, in which Cory J. held for the majority that both probable cause and a warrant are the minimum constitutional standards for the seizure of bodily samples or the use of the body under s. 8 of the Charter . As s. 98 of the Customs Act does not require either probable cause or a warrant prior to conducting a border search, the respondent therefore contends that this provision cannot be used to authorize the seizure of body samples which occurred in the circumstances of this appeal. The respondent submits that the collection of bodily waste is sufficient to place a “bedpan vigil” within the category of “most highly intrusive” border searches on the basis that the search interferes with the right to bodily integrity.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-31", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 41", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The respondent’s reliance on the Court’s decision in Stillman, however, is misplaced. Detaining the respondent at the border in order to monitor his bowel movements and ascertain the presence of concealed narcotics is not analogous to the factual circumstances in Stillman, wherein the respondent was arrested for murder and refused consent to provide bodily samples for the purposes of DNA testing. The police, upon threat of force, nonetheless obtained bodily samples from the respondent while he was in custody, including strands of hair, dental imprints, saliva samples and buccal swabs. At one point, the police also retrieved a tissue that the respondent had used to blow his nose and had discarded in a wastebasket. At issue was whether the taking of the samples by the police was authorized by the common law search power incidental to an arrest. Cory J. concluded that the taking of bodily samples is a highly intrusive action which goes far beyond the typical frisk search that usually accompanies an arrest. Accordingly, he held that the respondent’s rights under s. 8 had been violated.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-32", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 42–43", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The most significant distinction between the circumstances of this appeal and the situation of the respondent in Stillman is that border crossings represent a unique factual circumstance for the purposes of a s. 8 analysis. The particularity of this context was recently affirmed by this Court in R. v. Jacques, [1996] 3 S.C.R. 312, wherein Gonthier J. stated for the majority as follows at para. 18: The unique context that border crossings present was recognized by this Court in R. v. Simmons, [1988] 2 S.C.R. 495. Dickson C.J., writing for the majority, said (at p. 528): National self‑protection becomes a compelling component in the calculus. I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries.\n\nAccordingly, decisions of this Court relating to the reasonableness of a search for the purposes of s. 8 in general are not necessarily relevant in assessing the constitutionality of a search conducted by customs officers at Canada’s border.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-33", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 44", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "A second important distinction between the circumstances of this appeal and those present in Stillman is that the customs officers, in detaining the respondent in this case and subjecting him to a passive “bedpan vigil”, were not attempting to collect bodily samples containing personal information relating to the respondent. Cory J. in Stillman expressed particular concern that the actions of the police in gathering DNA evidence violated the respondent’s expectations of privacy in using his body to obtain personal information. He relied in part on La Forest J.’s observation in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 431‑32, that \"the use of a person's body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity\". Thus the right of privacy protected by s. 8 of the Charter ensures that individuals are able to maintain bodily integrity and autonomy in the face of potential state interference. Cory J. summarized the connection between privacy and bodily integrity as follows, at para. 87: Canadians think of their bodies as the outward manifestation of themselves. It is considered to be uniquely important and uniquely theirs. Any invasion of the body is an invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity and privacy.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-34", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 45", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Heroin pellets contained in expelled faecal matter cannot be considered as an “outward manifestation” of the respondent’s identity. An individual’s privacy interest in the protection of bodily fluids does not extend to contraband which is intermingled with bodily waste and which is expelled from the body in the process of allowing nature to take its course. It is not necessary for determination of the issue in this appeal to address the question of whether, if the customs officers had adopted a more invasive form of collection, such as surgery or inducing a bowel movement, the result would necessarily be the same.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-35", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 46", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "As to my determination that the passive “bedpan vigil” conducted by the customs officers is properly classified as a search within the second category, a review of the representative border searches provided by Dickson C.J. in his analytical framework reveals that the principal distinction between searches in the second and third categories is that all of the examples listed in the third category involve, to a greater or lesser degree, the intentional application of force. Search techniques such as the insertion of a probe into a body cavity or the administration of an emetic could all be characterized in the absence of lawful authority as an assault. Consequently, the potential degree of state interference with an individual’s bodily integrity for searches in the third category requires a high threshold of constitutional justification. In Stillman, Cory J. affirmed the highly invasive nature of searches in the third category when he stated as follows, at para. 42: It has often been clearly and forcefully expressed that state interference with a person's bodily integrity is a breach of a person's privacy and an affront to human dignity. The invasive nature of body searches demands higher standards of justification. In R. v. Pohoretsky, [1987] 1 S.C.R. 945, at p. 949, Lamer J., as he then was, noted that, \"a violation of the sanctity of a person's body is much more serious than that of his office or even of his home\". In addition, La Forest J. observed in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 431‑32, \"the use of a person's body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity\". Finally, in R. v. Simmons, [1988] 2 S.C.R. 495, at p. 517, Dickson C.J.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-36", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 46–47", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "stated: The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X‑rays, to emetics, and to other highly invasive means.\n\nThus the determination of this appeal revolves around the central question of whether a “bedpan vigil” can properly be characterized as an “invasive” procedure on a par with body searches involving the intentional application of force. In my opinion, it cannot. There is no doubt that Canadians expect treatment that recognizes a strong sense of modesty concerning bodily functions. A traveller who is detained in a “drug loo facility” and compelled to produce either urine or a bowel movement under supervision is subject to an embarrassing process. In my view, however, a passive “bedpan vigil” is not as invasive as a body cavity search or medical procedures such as the administration of emetics. In this sense, the right to bodily integrity is not to be confused with feelings of modesty, notwithstanding their legitimacy. Accordingly, a passive “bedpan vigil” is more appropriately analogous to a category two strip search on the basis that a suspect is detained and placed in an embarrassing situation, but is not subjected to an intentional application of force against his or her will.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-37", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 48", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "While I conclude that the compelled production of a urine sample or a bowel movement is an embarrassing process, it does not interfere with a person’s bodily integrity, either in terms of an interference with the “outward manifestation” of an individual’s identity, as was the central concern in Stillman, or in relation to the intentional application of force, as was relevant in Simmons. As is the case with other investigation techniques in the second category such as a strip search, subjecting travellers crossing the Canadian border to potential embarrassment is the price to be paid in order to achieve the necessary balance between an individual’s privacy interest and the compelling countervailing state interest in protecting the integrity of Canada’s borders from the flow of dangerous contraband materials. Accordingly, I find that the border search conducted by the customs officers in the circumstances of this appeal was reasonable for the purposes of s. 8 of the Charter . 3. Did the customs officers have a reasonable suspicion that the respondent had narcotics secreted on or about his person?", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-38", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 49", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The reasons of the majority in the Court of Appeal overturned the trial judge’s ruling on the voir dire that Inspector Roberts had reasonable grounds to believe that the respondent had ingested narcotics prior to his arrival at Pearson International Airport, and was attempting to smuggle these narcotics across the Canadian border. The majority held instead that Inspector Roberts had only a reasonable suspicion. Having determined, however, that the search conducted by the customs officers was constitutionally permissible pursuant to s. 98 of the Customs Act on the basis of reasonable grounds to suspect, which can be viewed as a lesser but included standard in the threshold of reasonable and probable grounds to believe, I see no reason to interfere with the implicit factual finding at trial, confirmed on appeal, that Inspector Roberts had at the very least reasonable grounds to suspect that the respondent had ingested narcotics.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-39", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 50", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is important to note that Inspector Roberts based his conclusion on the cumulative effect of several factors, and that no one factor can be assessed in isolation. Recall that Inspector Roberts first noted that the respondent’s airline ticket to Switzerland had cost $688.00 and was paid for by cheque on the date of departure. Inspector Roberts interpreted this to indicate that the respondent had left Canada in haste, since in his experience most people arrange their travel plans and purchase their tickets well in advance of the date of departure. It had also been his experience that the average traveller is unlikely to fly to Switzerland on short notice to visit a cousin, particularly in circumstances such as the respondent’s where financial resources would most likely be limited. These factors increased in significance given Inspector Roberts’ opinion that Switzerland was a “transit routing” country for narcotics smuggling. Inspector Roberts also noted that the respondent’s passport listed his place of birth as Ghana, which Inspector Roberts viewed as a corresponding “source” country. The respondent, however, denied in response to Inspector Roberts’ questioning that he had travelled to Ghana while out of the country.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-40", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 51–52", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "Inspector Roberts next asked the respondent whether he had a criminal record, which the respondent also denied. Inspector Roberts then performed a computer check which disclosed that the respondent had been charged with incest but had not yet been tried. When Inspector Roberts returned from completing the computer check to question the respondent further, the respondent volunteered the information that was perhaps the most damaging to his credibility. Although the respondent initially denied having travelled to Ghana, he subsequently admitted to Inspector Roberts that he had indeed visited Ghana to visit his mother. It was at this point that Inspector Roberts indicated in his evidence: “I had actually got grounds”. In my opinion, a traveller’s inability to maintain consistency when responding to questions regarding his or her travel itinerary, particularly in circumstances where the itinerary is relatively uncomplicated, leads to an entirely reasonable inference that the traveller is attempting at the very least to mislead the customs officer.\n\nWhen the respondent’s admission to having visited Ghana is considered in light of the cumulative effect of the factors considered by Inspector Roberts, particularly in light of Inspector Roberts’ view that the respondent had visited both a “transit routing” and “source” country for narcotics, Inspector Roberts’ assessment that he had reasonable grounds to suspect that the respondent was attempting to smuggle ingested narcotics into Canada is unassailable. 4. Did the customs officers conduct the search of the respondent “within a reasonable time after his arrival in Canada” as required by s. 98(1) of the Customs Act?", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-41", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 53", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "On the question of whether the customs officers conducted the search within a reasonable time after the respondent’s arrival in Canada, I agree with Weiler J.A.’s conclusion that the assessment of “reasonableness” must take into account not only any delay in the search process, but also the inherent time requirements of the particular search technique. Based on the evidence at trial, a delay of 30 minutes from the time a person is detained until the search begins is reasonable. In this case, however, the customs enforcement officers did not arrive until nearly two hours after the respondent was detained. As Weiler J.A. noted, however, while a delay at any point in the search process is an important consideration, it cannot be examined in isolation. Given the fact that a passive “bedpan vigil” is an inherently time-consuming process, I am of the opinion that the delayed response by the customs enforcement officers of one-and-a-half hours is not sufficient to establish that the search of the respondent was not conducted “within a reasonable time after his arrival in Canada” as required by s. 98(1) of the Customs Act. B. Does s. 7 of the Charter require that the detention of a traveller who is believed to have swallowed narcotics be conducted under medical supervision?", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-42", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 54", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is not disputed that those who ingest large amounts of heroin in the form of pellets will be placed in physical danger should one of the pellets burst or otherwise begin leaking while still inside the person’s digestive system. The risk increases with time and to the extent that the natural passage of the material in the form of a bowel movement is resisted. There is no doubt that the respondent’s safety was at risk for this reason and that the customs officers were aware of this fact once the positive urine test confirmed the presence of heroin in the respondent’s system. Although the official customs policy in such cases is to conduct the detention in a hospital or otherwise under qualified medical supervision, the customs officers were unaware of this official policy and instead followed the standard port policy, which was to monitor the suspect closely and to provide prompt medical attention if requested by the suspect, or should the need arise.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-43", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 55", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "The respondent contends that the actions of the customs officers placed his life at risk in a manner contrary to his guaranteed constitutional rights under s. 7 of the Charter by failing to ensure that his detention was conducted at all times under medical supervision. The Court held in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, that state action which has the likely effect of impairing a person’s health engages the fundamental right under s. 7 to security of the person. What the respondent is seeking in this appeal, however, is to extend this constitutional guarantee to include an obligation by the state to provide medical supervision in response to the risk to the respondent’s health which in these circumstances was self-induced, notwithstanding that the respondent himself refused the offer of medical attention.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-44", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "paras 56–57", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "As Weiler J.A. noted, although the respondent was deprived of his physical liberty during his period of detention, he was not deprived of the liberty to make his own decisions concerning his health, regardless of whether he made a decision which was contrary to his own best interests. The customs officers specifically inquired as to the respondent’s well-being and made it clear to the respondent that unconditional medical assistance was available at any time. While it might have been preferable for the customs officers to have followed the official customs policy, as indicated in the testimony of the expert, they took reasonable steps to ensure the respondent’s physical safety by monitoring his condition and specifically offering him access to medical care. Constitutional protection of life and security of the person pursuant to s. 7 of the Charter does not extend to providing access to medical supervision during a passive “bedpan vigil” over and above the rejection of medical attention by the suspect being detained. C. If the accused’s Charter rights were violated, should the evidence of the heroin pellets have been excluded at trial pursuant to s. 24(2)?\n\nHaving determined that the customs officers’ detention of the respondent in order to confirm their suspicions that he had ingested narcotics did not violate the respondent’s rights under s. 7 or s. 8 of the Charter , I do not find it necessary to address the exclusion of evidence under s. 24(2). VI. Conclusion and Disposition", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-1694-45", + "doc_type": "caselaw", + "act_code": "[1999] 1 SCR 652", + "act_short": "Monney", + "act_name": "R. v. Monney", + "section": "", + "citation": "R. v. Monney, [1999] 1 SCR 652", + "marginal_note": "para 58", + "heading": "Border detention for a customs search; reasonable suspicion and the Customs Act", + "part": "Supreme Court of Canada", + "division": "", + "text": "I conclude that the actions of the customs officers were authorized by s. 98 of the Customs Act on the basis that: (a) s. 98 of the Act permits customs officers who have a reasonable suspicion that a traveller has ingested narcotics to detain the traveller for such a period of time as is necessary either to confirm or discredit this suspicion by means of a passive “bedpan vigil”; and (b) the customs officers in the circumstances of this appeal did have reasonable grounds to suspect that the respondent had indeed ingested narcotics. Accordingly, I would allow the appeal, set aside the judgment of the Ontario Court of Appeal, and restore the conviction entered at trial. Appeal allowed.", + "current_to": "1999-04-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1694/index.do" + }, + { + "id": "scc-986-1", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 1", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053\n\nAbdul Rassoul Dehghani Appellant\n\nv.\n\nThe Minister of Employment and Immigration Respondent\n\nand\n\nThe Canadian Council of Refugees Intervener\n\nIndexed as: Dehghani v. Canada (Minister of Employment and Immigration)\n\nFile No.: 22153.\n\n1992: December 2; 1993: March 25.\n\nPresent: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.\n\non appeal from the federal court of appeal\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Examinations at port of entry by immigration officer ‑‑ Convention refugee claimants ‑‑ Secondary examination ‑‑ Whether claimant detained and having right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms .\n\nConstitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Right to counsel ‑‑ Examinations at port of entry by immigration officer ‑‑ Convention refugee claimants ‑‑ Secondary examination ‑‑ Whether claimant having right to counsel under s. 7 of Canadian Charter of Rights and Freedoms .\n\nImmigration ‑‑ Examinations at port of entry by immigration officer ‑‑ Convention refugee claimants ‑‑ Secondary examination ‑‑ Whether claimant having right to counsel under ss. 7 or 10(b) of Canadian Charter of Rights and Freedoms .", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-2", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 2", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant, a citizen of Iran, arrived in Canada without valid travel or identity documents and claimed Convention refugee status. At the airport, he entered a primary examination line and was subsequently referred to a secondary examination before an immigration officer in another part of the airport, where he waited approximately four hours before the examination took place. In answering questions as to his claim to Convention refugee status, the appellant omitted important factual details. At the conclusion of the secondary examination, he was advised of his right to counsel to help him put forward his refugee claim. Following an inquiry, an adjudicator and an immigration refugee board member concluded that he did not have a credible basis for his refugee claim and issued an exclusion order. The Federal Court of Appeal dismissed the appellant's application to review and set aside the decision under s. 28 of the Federal Court Act and upheld the order. The majority of the court held that the appellant had not been \"detained\" in a manner contemplated by s. 10( b ) of the Canadian Charter of Rights and Freedoms prior to or during the secondary examination at the airport and, accordingly, that no obligation to inform him of his right to counsel arose. This appeal raises two issues: (1) whether the appellant was detained within the meaning of s. 10( b ) of the Charter during his secondary examination at the airport; and (2) whether the appellant's rights under s. 7 of the Charter were infringed by the failure to provide him with counsel at the port of entry.\n\nHeld: The appeal should be dismissed.\n\n(1) Section 10(b)", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-3", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 3", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "A secondary examination by an immigration officer at a port of entry does not constitute a \"detention\" within the meaning of s. 10( b ) of the Charter . The element of state compulsion is insufficient. The appellant's questioning in the secondary examination was a routine part of the general screening process for persons seeking entry to Canada. The questioning was purely for the purpose of processing his application for entry and determining the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status. Travellers seeking to cross national boundaries fully expect to be subject to a screening process. In this case, there was no action on the part of the immigration authorities to indicate that the restriction on the appellant's freedom had gone beyond that required for the processing of his application for entry and had become a restraint of liberty. Further, there is no stigma associated with a referral to a secondary examination. The absence of stigma is another factor indicating that no detention of constitutional consequence occurs during routine questioning.\n\nIt would be unreasonable to expect the screening process for all persons seeking entry into Canada to take place in the primary examination line. For those persons who cannot immediately produce documentation indicating their right of entry, the screening process requires more time and a referral to a secondary examination is therefore necessary. The secondary examination is a continuation or completion of the initial examination which takes place in the primary inspection line and remains a routine part of the general screening process.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-4", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 4", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "Neither the existence of a statutory duty to answer the questions posed by the immigration officer nor the existence of criminal penalties for both the failure to answer questions and knowingly making a false or misleading statement necessitates the conclusion that the appellant was detained within the meaning of s. 10(b). These provisions are both logically and rationally connected to the role of immigration officials in examining those persons seeking to enter the country. Indeed, they are required to ensure that border examinations are taken seriously and are effective.\n\n(2) Section 7\n\nAssuming that s. 7 of the Charter is engaged in the circumstances of this case, the principles of fundamental justice do not require that the appellant be provided with counsel at the pre‑inquiry or pre‑hearing stage of the refugee claim determination process. While the right to counsel under s. 7 may apply in other cases besides those which are encompassed by s. 10(b), in an immigration examination for routine information‑gathering purposes, the right to counsel does not extend beyond those circumstances of arrest or detention described in s. 10(b). An inquiry to determine whether the appellant's claim to Convention refugee status had a credible basis was held and, pursuant to s. 30(1) of the Immigration Act, the appellant was informed of his right to counsel. He was in fact represented by counsel during the credible basis inquiry and had the opportunity to state his case and know the case he had to meet. The principles of fundamental justice do not include a right to counsel for routine information gathering and to allow counsel at port of entry interviews would constitute unnecessary duplication.\n\nCases Cited", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-5", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 5", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "Applied: R. v. Therens, [1985] 1 S.C.R. 613; R. v. Simmons, [1988] 2 S.C.R. 495, aff'g (1984), 11 C.C.C. (3d) 193 (Ont. C.A.); R. v. Kwok (1986), 31 C.C.C. (3d) 196; referred to: R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Rodenbush (1985), 21 C.C.C. (3d) 423; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Jones, [1986] 2 S.C.R. 284; R. v. Lyons, [1987] 2 S.C.R. 309; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; R. v. Beare, [1988] 2 S.C.R. 387; Montfort v. Minister of Employment and Immigration, [1980] 1 F.C. 478; R. v. Généreux, [1992] 1 S.C.R. 310; R. v. Pearson, [1992] 3 S.C.R. 665.\n\nStatutes and Regulations Cited\n\nCanadian Charter of Rights and Freedoms , ss. 1 , 7 , 8 to 14 , 10( b ) , 24(2) .\n\nFederal Court Act , R.S.C., 1985, c. F‑7 , s. 28 .\n\nImmigration Act, R.S.C., 1985, c. I‑2, ss. 12, 19 [am. c. 30 (3rd Supp.), s. 3], 20, 23(3), (4), 30(1) [rep. & sub. c. 28 (4th Supp.), s. 9], 43(1) [idem, s. 14], 94(1)(g) [idem, s. 24], (h) [idem].", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-6", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 6", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "APPEAL from a judgment of the Federal Court of Appeal, [1990] 3 F.C. 587, 72 D.L.R. (4th) 58, 113 N.R. 382, 1 C.R.R. (2d) 253, 11 Imm. L.R. (2d) 51, dismissing appellant's application under s. 28 of the Federal Court Act to review and set aside the decision of an adjudicator and an Immigration Refugee Board member. Appeal dismissed.\n\nPia Zambelli and Barbara Jackman, for the appellant.\n\nJ. E. Thompson, Q.C., and Donald A. MacIntosh, for the respondent.\n\nDavid Matas, for the intervener.\n\n//Iacobucci J.//\n\nThe judgment of the Court was delivered by\n\nIacobucci J. -- This appeal concerns the scope of ss. 10( b ) and 7 of the Canadian Charter of Rights and Freedoms as they apply to refugee claimants entering Canada. Specifically, the appeal raises the issue of whether a secondary examination by an immigration officer at a port of entry constitutes a \"detention\" within the meaning of s. 10( b ) of the Charter . In addition, the question of the right to counsel under s. 7 of the Charter is raised.\n\nI. Background\n\nThe appellant is a citizen of Iran. He arrived in Canada on May 13, 1989 without valid travel or identity documents, and claimed Convention refugee status. He did not understand English, the language in which the procedures in issue were conducted, and was provided with an interpreter.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-7", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 7", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "When the appellant arrived at Pearson International Airport in Toronto, he entered a primary examination line. From there, he was referred to a secondary examination before an immigration officer in another part of the airport, and waited approximately four hours before this examination took place. He was not advised of a right to counsel at any time during the proceedings. The immigration officer conducting the secondary examination made extensive written notes. During the examination, the appellant was asked questions relating to his admissibility under s. 19 of the Immigration Act, R.S.C., 1985, c. I‑2, which sets out those classes whose members shall not be granted admission to Canada, such as persons who are a danger to public health or safety or persons who have been convicted of a serious criminal offence. The appellant was also questioned as to his claim to Convention refugee status. In answering these questions, the appellant omitted important factual details concerning the grounds of his claim to refugee status. In addition, in response to a question about the basis for his refugee claim, the appellant stated that he wanted to work for himself and the future of his children who want to study.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-8", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 8", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "With regard to his claim to Convention refugee status, the appellant later claimed that he suffered persecution in Iran for his royalist beliefs and for his support for the Shah of Iran. Because of his support of the royalist cause, the appellant stated that he and his family were investigated and driven into hiding, one of his daughters was arrested and executed, and the appellant's business was confiscated. For these reasons, he fled Iran for Turkey in April 1989, and this was the last time he saw his family. However, the appellant omitted to tell these facts to the immigration officer in the secondary examination.\n\nThe immigration officer who conducted the secondary examination concluded that the appellant could not be admitted to Canada under s. 19 of the Immigration Act. At the conclusion of the secondary examination, the appellant was advised of his right to counsel to help him put forward his refugee claim.\n\nA so-called credible basis inquiry before a Canada Employment and Immigration Commission Tribunal (the Tribunal) was therefore convened to consider the appellant's admissibility to Canada and whether a full hearing before the Immigration and Refugee Board of Canada into the merits of his claim to Convention refugee status should be ordered. The notes taken by the immigration officer who conducted the secondary examination were entered as evidence at the inquiry. The Tribunal stated that the appellant was not a credible witness. The appellant was found to be inadmissible and not deserving of a determination of his claim by the Refugee Division, because his claim to refugee status did not have a credible basis. The appellant was therefore ordered excluded from Canada.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-9", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 9", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant obtained leave to apply to the Federal Court of Appeal for judicial review of the exclusion order. He challenged the validity of that order on the grounds that it was obtained through the use of evidence that was obtained in violation of his right to counsel under s. 10( b ) of the Charter . His application was dismissed and the exclusion order was upheld by the majority of the Court of Appeal.\n\nII. Relevant Statutory and Charter Provisions\n\nImmigration Act, R.S.C., 1985, c. I-2\n\n12. (1) Every person seeking to come into Canada shall appear before an immigration officer at a port of entry, or at such other place as may be designated by a senior immigration officer, for examination to determine whether that person is a person who shall be allowed to come into Canada or may be granted admission.\n\n. . .\n\n(3) Where an immigration officer commences an examination referred to in subsection (1), the officer may, in such circumstances as the officer deems proper,\n\n(a) adjourn the examination and refer the person being examined to another immigration officer for completion of the examination; and\n\n(b) detain or make an order to detain the person.\n\n(4) Every person shall answer truthfully all questions put to that person by an immigration officer at an examination and shall produce such documentation as may be required by the immigration officer for the purpose of establishing whether the person shall be allowed to come into Canada or may be granted admission.\n\n20. (1) Where an immigration officer is of the opinion that it would or may be contrary to this Act or the regulations to grant admission to a person examined by the officer or otherwise let that person come into Canada, the officer may detain or make an order to detain that person and shall", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-10", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 10", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "(a) subject to subsection (2), report that person in writing to a senior immigration officer; or\n\n(b) allow that person to leave Canada forthwith.\n\n23. ...\n\n(3) Where a senior immigration officer does not let a person come into Canada pursuant to section 22 and does not grant admission to or otherwise authorize the person to come into Canada pursuant to subsection (1) or (2), the officer may, subject to subsections (4) and (6),\n\n(a) detain or make an order to detain the person; or\n\n(b) release the person from detention subject to such terms and conditions as the officer deems appropriate in the circumstances, including the payment of a reasonable security deposit or the posting of a performance bond.\n\n(4) In the cases described in subsection (3), the senior immigration officer shall\n\n(a) subject to subsection (5), cause an inquiry to be held concerning the person referred to in subsection (3) as soon as is reasonably practicable; or\n\n(b) allow that person to leave Canada forthwith.\n\n30. (1) Every person with respect to whom an inquiry is to be held shall be informed of the person's right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and, subject to subsections (2) and (3), shall be given a reasonable opportunity, if the person so desires and at the person's own expense, to obtain counsel.\n\n43. (1) Before any substantive evidence is given at an inquiry, the adjudicator shall give the person who is the subject of the inquiry an opportunity to indicate whether or not the person claims to be a Convention refugee.\n\n94. (1) Every person is guilty of an offence who\n\n. . .", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-11", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 11", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "(g) refuses to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or inquiry under this Act or a hearing held pursuant to subsection 44(3);\n\n(h) knowingly makes any false or misleading statement at an examination or inquiry under this Act or a hearing held pursuant to subsection 44(3) or in connection with the admission of any person or the application for admission by any person;\n\nCanadian Charter of Rights and Freedoms\n\n7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.\n\n10. Everyone has the right on arrest or detention\n\n...\n\n(b) to retain and instruct counsel without delay and to be informed of that right;\n\nIII. Judgment of the Federal Court of Appeal, [1990] 3 F.C. 587\n\nMahoney J.A. (Pratte J.A. concurring)\n\nMahoney J.A. held that the appellant had not been detained in a manner contemplated by s. 10( b ) of the Charter prior to or during the secondary examination, and accordingly, that no obligation to inform him of his right to counsel arose. Mahoney J.A. noted that everyone, including a Canadian citizen, who seeks admission to Canada at a port of entry is detained until an immigration officer determines that it would not be contrary to the Immigration Act for that person to enter Canada. What distinguishes all such detainees from a detainee in the constitutional sense, Mahoney J.A. argued, is the fact that such persons have not been put in that position by an agent of the state assuming control over their movements, but by their own actions in seeking admission to Canada.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-12", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 12", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "Mahoney J.A. emphasized the fact that the immigration officer has a duty to enquire whether a person claiming to be a Convention refugee qualifies for admission. The court examined the questioning of the appellant and concluded that the secondary examination was routine, and was simply an extension of the routine questioning that took place at the primary examination line. Mahoney J.A. held that the appellant's state of mind at the time could not change the essentially routine character of the examination, which was in no way analogous to an inquisitorial strip search which would constitute a detention for constitutional purposes. Further, the delay in being interviewed did not, according to the court, constitute a factor attributable to a detention (at p. 608):\n\nAs I understand the terminology, the primary examination occurred, in this case, at what the [appellant] described as a \"little booth\". That, I take it, was one of the kiosks before which all deplaning international passengers line up. It seems clearly unreasonable to expect that the required examination of a Convention refugee claimant by an immigration officer could ever be satisfactorily conducted at the head of the primary examination line. The mere reference of such a person to a secondary examination and a delay in beginning it cannot, in my view, themselves lead to the conclusion that the person is detained in the constitutional sense. A delay of several hours may be attributable only to the numbers of persons requiring examination and officers available to do it or to the need for translation.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-13", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 13", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finally, Mahoney J.A. observed that the appellant was not, at the secondary examination, cajoled into making admissions which led to the subsequent finding that his claim lacked a credible basis. Rather, it was the omission of certain facts by the appellant at the examination which led to the adverse findings of credibility.\n\nAs a result, Mahoney J.A. held that no \"detention\" in the sense contemplated by s. 10( b ) of the Charter had occurred. Therefore, there was no obligation to advise the appellant of his right to counsel prior to the secondary examination and thus no violation of his s. 10(b) rights.\n\nHeald J.A. (dissenting)\n\nHeald J.A. took a very different view from that of the majority, concluding that the appellant had been \"detained\" within the meaning of s. 10(b). He emphasized the portions of Le Dain J.'s judgment in R. v. Therens, [1985] 1 S.C.R. 613, dealing with psychological compulsion as a form of detention for the purposes of s. 10(b), and concluded that the rationale of those comments applied to the appellant's case. The immigration officer who conducted the secondary examination, Heald J.A stated, was an agent of the state who assumed control over the appellant's movements; the appellant was not free to leave the room and go elsewhere. The interrogation and the appellant's answers became an integral part of the inquiry under the Immigration Act which resulted in the unconditional exclusion order. The appellant's uncontradicted affidavit evidence indicated that he had acquiesced in the deprivation of his liberty since he reasonably believed that he had no choice to do otherwise. These factors led Heald J.A. to conclude that, under Therens, the appellant was \"detained\" within the meaning of s. 10(b).", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-14", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 14", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "Heald J.A. also held that this Court's decision in R. v. Simmons, [1988] 2 S.C.R. 495, supported the appellant's claim. Heald J.A. rejected the majority's suggestion that the secondary examination was merely another form of routine questioning akin to that which every traveller is required to undergo upon seeking to enter Canada, and was held in Simmons not to constitute a detention in the constitutional sense. Rather, Heald J.A. found the appellant's situation to be analogous to the inquisitorial strip search which the accused in Simmons was forced to undergo and which Dickson C.J. in that case held to give rise to a s. 10(b) detention. Like the accused in Simmons, the appellant was taken out of the normal course and required to submit to interrogation; there was a \"reasonable perception of suspension of freedom of choice\" and an \"involuntary restraint of liberty\" as in Simmons.\n\nFollowing Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 202, Heald J.A. held that the word \"Everyone\" in s. 10(b) must include claimants for refugee status who are physically present in Canada. Heald J.A. stated that the rationale for s. 10(b) protection was just as compelling in this type of situation as in the criminal context: \"In the case of a refugee claimant such as this claimant, assuming that even a portion of his factual assertions are true, the consequences of his enforced return to Iran could well include incarceration, torture and even death\" (p. 600). Accordingly, Heald J.A. concluded that the appellant had been detained for the purposes of s. 10(b).", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-15", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 15", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "Heald J.A. further held that the appellant's s. 10(b) right to counsel had been violated. The violation was a substantive one since the examining officer's notes obtained in violation of the appellant's s. 10(b) rights were used at the ensuing inquiry to impeach the appellant's credibility. Heald J.A. concluded that, had the appellant had the assistance of counsel before and during the secondary examination and thus had an informed explanation as to the scheme of the refugee process under Canadian immigration law, it was likely that the entire character of the proceedings would have been altered.\n\nHeald J.A. concluded his analysis of the s. 10(b) issue in the following manner (at p. 601):\n\nSince the Supreme Court of Canada has indicated in Therens, supra, that the jurisprudence relative to police investigations in criminal matters may be extended to other agents of the State and since the majority of the Court in Simmons, supra has applied the Therens test to searches at ports of entry pursuant to the Customs Act, I think that an equally persuasive argument can be made in support of the right to counsel for refugee claimants at ports of entry. In my opinion, the circumstances at bar as summarized herein strongly support such a conclusion.\n\nHeald J.A. concluded that s. 1 of the Charter did not come into play in this case, since the Immigration Act neither expressly nor by necessary implication required the deprivation of the right to counsel. Thus, there was no limit \"prescribed by law\" on which to found a s. 1 analysis.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-16", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 16", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "With respect to the issue of the appropriate remedy for the Charter violation, Heald J.A. noted that counsel for the appellant did not request the exclusion of the notes, nor make any submissions in support of such a request. Therefore, Heald J.A. did not consider the question as to whether the court had the power on an application under s. 28 of the Federal Court Act , R.S.C., 1985, c. F‑7 , to order the exclusion of this evidence in this case, but stated that the decision of the credible basis tribunal should be set aside as well as the exclusion order which followed.\n\nIV. Issues\n\nThe appellant raises two issues on this appeal. First, was the appellant detained in the sense contemplated by s. 10( b ) of the Charter during his secondary examination at the airport, and did that examination therefore violate his right to counsel? In the alternative, was the appellant's right not to be deprived of his right to life, liberty and security of the person except in accordance with the principles of fundamental justice infringed by the failure to provide him with counsel at the port of entry?\n\nV. Analysis\n\n1. Was the Appellant Detained Within the Meaning of Section 10(b) of the Charter ?\n\nThe starting point in determining whether or not a \"detention\" has occurred for the purposes of s. 10(b) is the judgment of this Court in Therens, supra, at pp. 641-42:", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-17", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 17", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "The purpose of s. 10 of the Charter is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10 -- arrest and detention -- are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel. In its use of the word \"detention\", s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.\n\nIn addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.\n\n. . . There can be no doubt that there must be some form of compulsion or coercion to constitute an interference with liberty or freedom of action that amounts to a detention within the meaning of s. 10 of the Charter .\n\nLe Dain J. went on to hold that the form of compulsion need not be physical. He stated, at p. 644:", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-18", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 18", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "[I]t is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.\n\nThe question raised by the present case is whether, in the context of immigration and refugee screenings at Canadian ports of entry, the element of state compulsion is sufficient to constitute \"detention\" for the purposes of s. 10(b).", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-19", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 19", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "The decision in Therens was applied by the British Columbia Court of Appeal in the context of customs inspections in R. v. Rodenbush (1985), 21 C.C.C. (3d) 423, at p. 426. In that case, customs officials had been alerted by American authorities regarding the two accused. When the accused stopped at the border, their car was searched, their suitcases taken inside for further examination, and the accused were taken into an inspection room to await the report on the suitcases. The Court of Appeal held that following Therens, \"there is no doubt in this case that when the two accused were asked to enter an interview room by customs officials they were \"detained\" within the meaning of s. 10 \" of the Charter .\n\nTherens was also applied in R. v. Kwok (1986), 31 C.C.C. (3d) 196 (Ont. C.A.). The accused was interviewed by Canadian immigration authorities at Pearson International Airport. The immigration officer who interviewed the accused to determine if he was a genuine visitor to Canada doubted this, and prepared a report pursuant to s. 20 of the Immigration Act for the acting senior immigration officer. This officer reviewed the report and concluded that the accused should be detained pending an inquiry to determine whether he could be admitted to Canada. A similar conclusion was reached with respect to a co-accused, and a substantial amount of heroin was later found in the luggage of the co-accused during a customs search. The accused and his co-accused were then arrested and advised of their right to counsel.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-20", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 20", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "Finlayson J.A., for the Ontario Court of Appeal, relied on this Court's decision in Therens and the decision in R. v. Simmons (1984), 11 C.C.C. (3d) 193 (Ont. C.A.), and noted at p. 207 that \"throughout the immigration and customs procedures, a person is under the restraint that he will not be allowed to enter Canada unless there is satisfactory compliance with the questioning and the searches provided for by the relevant statutes such as the Customs Act . . . and the Immigration Act\". Finlayson J.A. concluded that such restraints do not by themselves constitute a detention in the constitutional sense.\n\nThe Court of Appeal rejected the Crown's concession that the accused had been detained by the senior immigration officer as soon as that officer decided to detain him under the Immigration Act. Finlayson J.A. stated at p. 207 that \"[s]urely there must be some action on the part of the immigration authorities to indicate that the restriction on an immigrant's freedom has gone beyond that required for the processing of his application for entry and has become a restraint of liberty such as that contemplated by Le Dain J.\" in Therens, supra. The court held that \"the [accused] was detained when [the senior immigration officer], having filled out the detained convocation letter, invited the [accused] and [his co-accused] into his office with the intention of advising them of his decision to detain them\". Finlayson J.A. apparently relied on the combination of a decision by the senior immigration officer to detain, and his action in calling the accused into his office to determine the point at which a detention had occurred for constitutional purposes.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-21", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 21", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "This Court further considered the meaning of s. 10(b) \"detention\" in the case of Simmons, supra, in the context of customs inspections of travellers upon their arrival at Canadian ports of entry. In Simmons, the accused was routinely questioned by a customs officer, and was referred for a secondary inspection because she appeared overly nervous. The secondary inspector became suspicious and obtained permission from the Customs Superintendent to search the accused, who was taken to a search room and strip searched. Cannabis resin was found in bandages taped to the accused.\n\nDickson C.J. stated at p. 517 that there are three distinct types of border search which carry different constitutional implications:\n\nFirst is the routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X-rays, to emetics, and to other highly invasive means.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-22", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 22", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Chief Justice emphasized that each of the different types of search he identified raised different constitutional issues. He asserted that the more intrusive a search is, the greater the justification required and the constitutional protection afforded. Applying Therens, supra, Dickson C.J. went on to conclude that the accused was detained when she was required to undergo a strip search pursuant to the Customs Act. The accused could not have refused, and was clearly subject to external restraint as the customs officer had assumed control over her movements by a demand which had significant legal consequences.\n\nIn R. v. Jacoy, [1988] 2 S.C.R. 548, which was decided in conjunction with Simmons, supra, the RCMP had warned customs officials that the accused was attempting to import narcotics into Canada. When the accused arrived at the border, he was questioned by a customs officer, and then, because of the warning, was ordered to enter an interview room where he was interrogated and then frisked. A bag of cocaine was found in his socks, and he was arrested and informed of his right to counsel.\n\nDickson C.J. declined to decide whether the accused had been detained from the moment of arrival at the border, as the trial judge had held. However, following Simmons, Dickson C.J. held at pp. 557-58 that the accused\n\nwas detained when he was ushered into the interview room by [the customs inspectors]. At this point the customs inspectors had assumed control over the movement of the [accused] by a demand that had significant legal consequences for him. The evidence indicates that the customs officials intended to search the [accused] regardless of his responses to their questions.\n\n. . .", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-23", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 23", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my view, [the evidence] indicates that the decision to search the [accused], and to strip search him if necessary, had been made by the time the [accused] entered the interview room. The [accused] was clearly subject to restraint. He could not have refused to be searched and could not have continued on his way. I am therefore satisfied that the [accused] was detained, at least from this point onward, and should have been informed of his right to retain and instruct counsel.\n\nIt is important to recall that there is no right for non-citizens to enter or remain in Canada. In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733, Sopinka J. stated that \"[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country.\" See also Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 834, per La Forest J.\n\nThe questioning experienced by the appellant in this case is analogous to the first type of border search described by Dickson C.J. in Simmons, supra. It is well-established that the questioning of an individual by an agent of the state does not always give rise to a detention of constitutional import. In Simmons, supra, Dickson C.J. rejected the argument that, if a strip search is considered to be a detention with constitutional consequences, then all travellers passing through customs would be detained and therefore have a right to counsel under s. 10(b). He held, at p. 521:", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-24", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 24", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Therens, supra, Le Dain J. stated that not all communications with police officers and other state authorities will amount to detention within the meaning of s. 10( b ) of the Charter . This statement is equally valid with respect to the customs situation. I have little doubt that routine questioning by customs officials at the border or routine luggage searches conducted on a random basis do not constitute detention for the purposes of s. 10. There is no doubt, however, that when a person is taken out of the normal course and forced to submit to a strip search that person is detained within the meaning of s. 10.\n\nThe questioning which occurred in this case is similarly a routine part of the general screening process for persons seeking entry to Canada. As Dickson C.J. observed in Simmons at p. 528 in the context of the Charter protection against unreasonable search and seizure in s. 8,\n\n[p]eople do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation. . . .", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-25", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 25", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "Similarly, in Kwok, supra, at p. 207, the Ontario Court of Appeal held that the restraints necessary to determine whether persons presenting themselves for entry to Canada comply with the statutory requirements for entry do not constitute a detention within the meaning of s. 10(b). The Court of Appeal recognized that at a border the state has an interest in controlling entry into the country. Individuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context. These interests and expectations dictate that examination of a person for purposes of entry must be analyzed differently from the questioning of a person within Canada.\n\nIn this case, unlike in Kwok, there was no \"action on the part of the immigration authorities to indicate that the restriction on [the appellant's] freedom ha[d] gone beyond that required for the processing of his application for entry and ha[d] become a restraint of liberty such as that contemplated by Le Dain J.\" in Therens, supra. The questioning which occurred in this case was purely for the purpose of processing the appellant's application for entry and determining the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-26", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 26", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "Another factor identified in Simmons as indicating that no detention of constitutional consequence occurs during routine questioning is the absence of stigma. Clearly, there is no stigma associated with a referral to a secondary examination. For instance, Canadian citizens who are not able to demonstrate their identity are often referred to a secondary examination for confirmation of their citizenship. In addition, persons who are unable or unwilling to answer questions, applicants for permanent resident status, and Canadian citizens in possession of an emergency passport issued by a Canadian embassy official abroad to facilitate their return to Canada are habitually referred to a secondary examination. With respect to visitors in particular (in addition to persons claiming Convention refugee status), persons coming to seek or undergo medical treatment, persons in possession of emergency travel documents, persons intending to seek or take employment, persons intending to follow any course of study, and persons intending to remain more than six months are generally subject to a secondary examination referral.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-27", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 27", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "As Mahoney J.A. noted for the majority of the Federal Court of Appeal, it would be unreasonable to expect the screening process for all persons seeking entry into Canada to take place in the primary examination line. For those persons who cannot immediately produce documentation indicating their right of entry, the screening process will require more time, and a referral to a secondary examination is therefore required. There is, however, no change in the character of the examination simply because it is necessary for reasons of time and space to continue it at a later time in a different section of the processing area. The examination remains a routine part of the general screening process for persons seeking entry to Canada. It is clear from the wording of s. 12(3)(a) of the Immigration Act that a referral to a secondary examination is a continuation or completion of the initial examination which takes place in the primary inspection line. The facts of this case confirm that what took place was a continuation of the examination and not a transformation of it into a detention for constitutional purposes.\n\nThe questioning of the appellant was clearly distinguishable from an intrusive strip search. As Dickson C.J. stated at p. 517 in Simmons, supra, the degree of constitutional protection will be a function of the degree of intrusiveness of the search at issue. While the present case does not concern a search, but rather questioning, an analogy can be drawn. The questioning of the appellant was routine in nature, and concerned solely with his reasons for wishing to enter Canada, and the basis upon which he wanted to do so.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-28", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 28", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is important to note that neither the existence of a statutory duty to answer the questions posed by the immigration officer nor the existence of criminal penalties for both the failure to answer questions and knowingly making a false or misleading statement necessitates the conclusion that the appellant was detained within the meaning of s. 10(b). These provisions are both logically and rationally connected to the role of immigration officials in examining those persons seeking to enter the country. Indeed, they are required to ensure that border examinations are taken seriously and are effective. Both of these types of provisions also exist in the Customs Act, and as I have already discussed, this Court held in Simmons at p. 517 that it would be absurd to suggest that routine questioning by a customs officer constitutes a detention for the purposes of s. 10(b).\n\nFor these reasons, I conclude that the appellant was not detained at the port of entry within the meaning of s. 10( b ) of the Charter .\n\n2. Did the Appellant Have a Right to Counsel Under Section 7?\n\nIn Singh v. Minister of Employment and Immigration, supra, Wilson J. held that since the refugee claim determination process has the potential to deprive a Convention refugee of security of the person, the determination process must accord with the principles of fundamental justice. Wilson J. held at p. 210:\n\nGiven the potential consequences for the appellants of a denial of [Convention refugee] status if they are in fact persons with a \"well-founded fear of persecution\", it seems to me unthinkable that the Charter would not apply to entitle them to fundamental justice in the adjudication of their status.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-29", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 29", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "Assuming without deciding that s. 7 is engaged in the circumstances of this case, what must be determined is whether the principles of fundamental justice include a right to counsel in these circumstances.\n\nThe relationship between s. 7 and the rights in ss. 8 to 14 of the Charter has been considered in various decisions of this Court. In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 502-3, Lamer J. (as he then was) stated that ss. 8 to 14 of the Charter address specific deprivations of the right guaranteed by s. 7. He asserted that it \"would be incongruous to interpret s. 7 more narrowly than the rights in ss. 8 to 14\". This must be read in light of Lamer J.'s later discussion in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at p. 1178, in which he stated that \"it is neither wise nor necessary to subsume all other rights in the Charter within s. 7. A full and generous interpretation of the Charter that extends the full benefit of its protection to individuals can be achieved without the incorporation of other rights and freedoms within s. 7\". Lamer J. continued by noting that s. 1 does not apply to s. 7 because of its \"permissive\" nature. Therefore, he reasoned, by interpreting s. 7 so that it does not subsume the other rights in the Charter , individuals may be afforded greater protection since restrictions on their rights guaranteed by provisions other than s. 7 must be justified under s. 1. For that reason, Lamer J. concluded that \"it is desirable to maintain a conceptual distinction between the rights guaranteed by s. 7 and the other freedoms in the Charter \".", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-30", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 30", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "The concept of residual protection under s. 7 of the interests that the rights in ss. 8 to 14 are designed to protect was addressed in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 537. In that case, La Forest J. stated that he was \"prepared to agree that s. 7 of the Charter may in certain contexts at least provide residual protection to the interests the right is designed to protect that goes beyond the specific protection provided by ss. 11( c ) and 13 \". Therefore, La Forest J. concluded, the fact that the appellants in that case did not meet the requirements of ss. 11( c ) and 13 was not fatal to their claim. A similar position was taken by Wilson J., dissenting on other grounds, at p. 470.\n\nRecently, in R. v. Pearson, [1992] 3 S.C.R. 665, at p. 688, this Court held that when the plaintiff's complaint falls squarely within a highly specific guarantee in ss. 8 to 14 , then the Charter challenge must be determined according to that section, rather than under s. 7. See also R. v. Généreux, [1992] 1 S.C.R. 259, at p. 310. Applying this reasoning to the case at bar, there may be residual protection of the right to counsel under s. 7 in situations which do not fall within the parameters of \"arrest or detention\" in s. 10(b).", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-31", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 31", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is clear that the concept of fundamental justice includes at a minimum the notion of procedural fairness: Re B.C. Motor Vehicle Act, supra; R. v. Jones, [1986] 2 S.C.R. 284, at p. 322; and R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361. According to Singh at p. 213, the procedures set out in the Immigration Act must \"provide an adequate opportunity for a refugee claimant to state his case and know the case he has to meet\". Wilson J. noted, however, that procedural fairness may require different procedures depending on the context. This point was also made by La Forest J. in Lyons at p. 361:\n\nIt is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.\n\nSee also, Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96, per Sopinka J.; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, per L'Heureux-Dubé J.; and Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at p. 882.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-32", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 32", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "The further point was made in Lyons at p. 362 that \"s. 7 of the Charter entitles the [accused] to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined\"; see also R. v. Beare, [1988] 2 S.C.R. 387, at p. 412. In my view, the principles of fundamental justice do not require that the appellant be provided with counsel at the pre-inquiry or pre-hearing stage of the refugee claim determination process. While the right to counsel under s. 7 may apply in other cases besides those which are encompassed by s. 10(b), for example in cases involving the right to counsel at a hearing, it is clear from my earlier comments that the secondary examination of the appellant at the port of entry is not analogous to a hearing. Certainly, factual situations which are closer or analogous to criminal proceedings will merit greater vigilance by the courts. However, in an immigration examination for routine information-gathering purposes, the right to counsel does not extend beyond those circumstances of arrest or detention described in s. 10(b).", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-33", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 33", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "The requirement of a hearing for the adjudication of Convention refugee claims was discussed in Singh at pp. 213-14. Wilson J. held that where the question of whether the appellant's claim to Convention refugee status involves an issue of credibility, the appellant is entitled to an oral hearing: \"where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing\". An inquiry to determine whether the appellant's claim to Convention refugee status had a credible basis was held, and the appellant was informed of his right to obtain the services of and be represented by counsel at the inquiry pursuant to s. 30(1) of the Immigration Act. The appellant was in fact represented by counsel during the credible basis inquiry. The concern raised by Wilson J. in Singh related to the adequacy of \"the opportunity the [procedural] scheme provides for a refugee claimant to state his case and know the case he has to meet\" (p. 214). This concern is met in the present case by the requirement of a subsequent oral hearing.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-986-34", + "doc_type": "caselaw", + "act_code": "[1993] 1 SCR 1053", + "act_short": "Dehghani", + "act_name": "Dehghani v. Canada (Minister of Employment and Immigration)", + "section": "", + "citation": "Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 SCR 1053", + "marginal_note": "excerpt 34", + "heading": "Charter rights at a port of entry; secondary examination and the right to counsel", + "part": "Supreme Court of Canada", + "division": "", + "text": "To allow counsel at port of entry interviews would, in the words of Heald J.A. in Montfort v. Minister of Employment and Immigration, [1980] 1 F.C. 478 (C.A.), at pp. 481-82, \"entail another \"mini-inquiry\" or \"initial inquiry\" possibly just as complex and prolonged as the inquiry provided for under the Act and Regulations\". This would constitute unnecessary duplication. The purpose of the port of entry interview was, as I have already observed, to aid in the processing of the appellant's application for entry and to determine the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status. The principles of fundamental justice do not include a right to counsel in these circumstances of routine information gathering.\n\nVI. Conclusion\n\nAs I have concluded that the appellant's rights under ss. 10( b ) and 7 of the Charter were not violated, it is unnecessary to address the application of s. 24(2) of the Charter .\n\nFor the foregoing reasons, I would therefore dismiss the appeal.\n\nAppeal dismissed.", + "current_to": "1993-03-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/986/index.do" + }, + { + "id": "scc-1627-1", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 1–2", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Bastarache J. — This appeal raises two important questions relating to who may be admitted to Canada as a refugee: first, the proper standard of judicial review over decisions of the Immigration and Refugee Board; second, the meaning of the exclusion from refugee status of those who are “guilty of acts contrary to the purposes and principles of the United Nations”. That exclusion, in Article 1F(c) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, is incorporated into Canadian law by s. 2(1) of the Immigration Act, R.S.C., 1985, c. I-2, requiring a definition of that phrase with respect to the domestic law of Canada. I. Factual Background\n\nThe relevant facts in this case are not the subject of dispute. The appellant, Veluppillai Pushpanathan, left his native Sri Lanka in 1983 and spent time in India and France before arriving in Canada, via Italy, on March 21, 1985. He claimed Convention refugee status under the Immigration Act (formerly Immigration Act, 1976, S.C. 1976-77, c. 52). The basis of the claim was that he had previously been detained by the Sri Lankan authorities for his political activities and would likely suffer persecution if returned to his country of citizenship. This claim was never adjudicated, however, as the appellant was granted permanent residence status in May 1987 under an administrative program, and was entitled to remain in Canada on that basis.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-2", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 3", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "In December 1987, the appellant was arrested along with seven others on charges of conspiracy to traffic in a narcotic under s. 423(1)(d) of the Criminal Code, R.S.C. 1970, c. C-34, and s. 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1. The appellant pleaded guilty to the offence and was among five of the group who were convicted. The appellant himself sold brown heroin to an RCMP officer on at least three occasions; at the time of the arrest, the group to which Mr. Pushpanathan belonged possessed heroin with a street value of some $10 million. Mr. Pushpanathan was sentenced to eight years in prison, while his co-conspirators received between four- and ten-year terms each.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-3", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 4", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "On September 23, 1991, the appellant, then on parole, renewed his claim to Convention refugee status under the United Nations Convention Relating to the Status of Refugees (the “Convention”), as implemented by the Immigration Act (the “Act”). I describe the application as a renewal because it is unclear that the initial claim made in March 1985 was ever abandoned. On June 22, 1992, a conditional deportation order was issued by Employment and Immigration Canada against Mr. Pushpanathan under s. 27(1)(d) and s. 32.1(2) of the Act, which provide that a permanent resident who has been convicted of an offence for which a sentence of more than six months’ imprisonment has been imposed, may be deported. Since the deportation pursuant to those sections is conditional upon a determination that the claimant is not a Convention refugee, Mr. Pushpanathan’s claim to Convention refugee status was referred to the Convention Refugee Determination Division of the Immigration and Refugee Board. The Board decided that the appellant was not a Convention refugee. The Federal Court, Trial Division and the Federal Court of Appeal refused to reverse that decision on an application for judicial review. Mr. Pushpanathan appeals to this Court. II. Statutory Framework", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-4", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 5–7", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 2(1) of the Act defines a “Convention refugee” as: . . . any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person’s nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country . . . but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;\n\nThat article of the Convention reads: Article 1 Definition of the Term “Refugee” . . . F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.\n\nPersons described in these paragraphs cannot benefit from any of the protections of the Convention. They are denied refugee status from the outset.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-5", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 8", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The importance of the exclusions found in Article 1 can only be understood in the context of other sections of the Convention which describe the limited conditions under which bona fide refugees may be denied the benefits of their status: Article 33 Prohibition of Expulsion or Return (“Refoulement”) 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-6", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 9–10", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The precise circumstances in which Article 33(2) is satisfied are defined with greater particularity in the Act: 53. (1) Notwithstanding subsections 52(2) and (3) [which describe the Minister’s deportation power], no person who is determined under this Act or the regulations to be a Convention refugee . . . shall be removed from Canada to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless (a) the person is a member of an inadmissible class described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; or (b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada.\n\nThe paragraph potentially applicable to the appellant’s situation is 19(1)(c): exclusion and removal Inadmissible Classes 19. (1) No person shall be granted admission who is a member of any of the following classes: . . . (c) persons who have been convicted in Canada of an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more;", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-7", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 11–14", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Other grounds justifying the refoulement of a refugee described in s. 19 include: conviction outside of Canada for an offence which, if committed in Canada, would be subject to a maximum term of imprisonment of ten years or more (19(1)(c.1)(i)); previous acts of terrorism, espionage, or subversion of democratic government, or grounds to believe that such acts will be committed in the future (19(1)(e) and (f)); grounds to believe that an individual will engage in violence in Canada (19(1)(g)); commission of war crimes or crimes against humanity (19(1)(j)); persons who constitute a danger to the security of Canada (19(1)(k)); and, membership or participation in a government engaged in terrorism, systematic or gross human rights violations, or war crimes or crimes against humanity (19(1)(l)).\n\nWhere one of these grounds is found to exist, the Minister must then make the added determination that the person poses a danger to the safety of the public or to the security of the country under s. 53(1)(a) or (b) respectively in order to justify refoulement.\n\nBy contrast, persons falling within Article 1F of the Convention are automatically excluded from the protections of the Act. Not only may they be returned to the country from which they have sought refuge without any determination by the Minister that they pose a threat to public safety or national security, but their substantive claim to refugee status will not be considered. The practical implications of such an automatic exclusion, relative to the safeguards of the s. 19 procedure, are profound.\n\nIt is against this background that the interpretation of the exclusion contained in Article 1F(c) of the Convention must be considered. III. Judicial History A. The Immigration and Refugee Board", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-8", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 15–16", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The panel of the Immigration and Refugee Board ruled that Mr. Pushpanathan was not a refugee by virtue of the exclusion clause in Article 1F(c): [1993] C.R.D.D. No. 12 (QL) (sub nom. D. (N.U.) (Re)). It also found that by trafficking in narcotics, the appellant had committed a crime against humanity under Article 1F(a). The parties agree that this finding was in error and have not argued the point in any of the appeals.\n\nCiting numerous United Nations conventions, the panel considered it “clear that for many years the United Nations has devoted a great deal of time and energy to the suppression of illicit traffic in drugs”. The panel accepted that suppression of this traffic is one of the purposes and principles of the United Nations, and that trafficking in heroin was an action against those purposes and principles. It also rejected the assertion that Article 1F(c) should apply only to state agents, or only to crimes committed outside the country of refuge. B. Application for Judicial Review to the Federal Court, Trial Division", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-9", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 17–18", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "An application for judicial review under s. 82.1(1) of the Act was made to the Federal Court, which dismissed the application: [1993] F.C.J. No. 870 (QL). McKeown J. found that the Board had “reasonably concluded” and that there were “serious reasons for considering” that the appellant was excluded by Article 1F(c) of the Convention. First, the court held that it was reasonable to conclude that initiatives to counter drug trafficking could be construed as part of the United Nations’ purposes and principles, although it suggested that, in some instances, the article might not apply because of the nature of the violation. Second, the court rejected the claim that Article 1F(c) should only apply to state actors. Third, the court found there was no room under Article 1F(c) for the weighing of the nature of the offence committed against the risk of persecution faced by the applicant.\n\nNotwithstanding these findings, the court did certify “that a serious question of general importance is involved”, giving the applicant a right of appeal to the Federal Court of Appeal under s. 83(1) of the Act. The court formulated the question in the following terms: “Is it an error of law for the Refugee Division [of the Immigration and Refugee Board] to interpret section F(c) of Article I of the United Nations Convention relating to the Status of Refugees to exclude from refugee status an individual guilty of a serious Narcotic Control Act offence committed in Canada?” C. Certified Question in the Federal Court of Appeal", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-10", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 19", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Federal Court of Appeal unanimously upheld the decision of the Trial Division: [1996] 2 F.C. 49. It resolved the question before the court into four issues (at p. 57): (1) Does Article 1F(c) of the Convention apply to acts committed by a refugee claimant in the country of refuge after his arrival there? (2) Can Article 1F(c) apply to a person already convicted of such acts? (3) Can Article 1F(c) apply to a person in respect of acts not committed on behalf of a state or government? (4) Is the act of conspiring to traffic in narcotics an act contrary to the purposes and principles of the United Nations?", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-11", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 20", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Strayer J.A., speaking for the court, began his analysis by considering the rules of interpretation which ought to apply in determining the scope of Article 1F(c). He observed that treaty interpretation rules may be used as an aid where, as here, a statute incorporates a treaty. He found that, in any event, since the treaty article is adopted verbatim in the statute, treaty interpretation rules certainly apply. Under this standard, he held that those “arguably more relaxed rules” allow for consideration of such factors as other provisions of the treaty, even those not implemented in, or incorporated by, the statute, and the travaux préparatoires. However, Strayer J.A. observed that “none of the rules of interpretation of statutes or treaties authorize a court to ignore completely the express terms of the language finally adopted in the treaty or the statute, in favour of vague expressions of intention derived from extrinsic sources which fail to demonstrate ambiguity in the text of the treaty or adopting statute” (p. 59). Finding the travaux préparatoires confusing and reflecting the intentions of only a small number of signatories, the court rejected their use as an interpretative guide, preferring to “place the most emphasis on the final text as approved” (p. 60). Moreover, he assumed that, like statutes, individual treaty provisions have some distinct purpose and meaning unless it is impossible to ascribe one. Finally, in considering the proper interpretative approach to the exclusions from refugee status, Strayer J.A. asserted that there was to be no presumption in favour of a narrow construction simply because the treaty was a human rights instrument.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-12", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 20–22", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Rather, exceptions to “the extraordinary right of refuge” were to be construed in a manner “most agreeable to justice and reason” (p. 61).\n\nWith this approach in place, the court found, first, that Article 1F(c) can apply to acts committed in the country of refuge; second, that it may apply to a person previously convicted for these acts; third, that it may apply to a person not acting on behalf of a state or government; and, fourth, that conspiring to traffic in narcotics is an act contrary to the purposes and principles of the United Nations. The appellant was therefore not a refugee under the exclusion clause contained in Article 1F(c). IV. Issues\n\nThree issues must be addressed for the determination of this appeal. First, what is the standard of review to be applied to the decision of the Immigration and Refugee Board? Second, how do the rules of treaty interpretation apply to the determination of the meaning of Article 1F(c)? Third, does the appellant’s act of drug trafficking fall within the definition of “acts contrary to the purposes and principles of the United Nations”? V. Analysis A. Standard of Review", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-13", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 23–24", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Neither in the decisions below, nor in the written submissions before this Court, was the issue of the proper standard of review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board addressed. McKeown J., at the Trial Division level, did find that the Board had “reasonably concluded” and that there were “serious reasons for considering” that the appellant was excluded by Article 1F(c) of the Convention, implying a standard of reasonableness. However, in certifying the question to be posed to the Court of Appeal, he asked whether the Board’s determination was an “error of law”, suggesting a standard of correctness. The Court of Appeal confined itself to answering the certified question. The court did not consider what standard of review had been applied below, nor whether that was the correct standard.\n\nNevertheless, s. 83(1) requires such an inquiry. It states: 83. (1) A judgment of the Federal Court — Trial Division on an application for judicial review . . . may be appealed to the Federal Court of Appeal only if the Federal Court — Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. [Emphasis added.]", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-14", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 25–26", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The certification of a “question of general importance” is the trigger by which an appeal is justified. The object of the appeal is still the judgment itself, not merely the certified question. One of the elements necessary for the disposition of an application for judicial review is the standard of review of the decision of the administrative tribunal whose decision is being reviewed, and that question is clearly in issue in this case. Reluctant as this Court is to decide issues not fully argued before it, determining the standard of review is a prerequisite to the disposition of this case.\n\nThe central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed. More specifically, the reviewing court must ask: “[W]as the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board?” (Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, at para. 18, per Sopinka J.).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-15", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 27", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Since U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, this Court has determined that the task of statutory interpretation requires a weighing of several different factors, none of which are alone dispositive, and each of which provides an indication falling on a spectrum of the proper level of deference to be shown the decision in question. This has been dubbed the “pragmatic and functional” approach. This more nuanced approach in determining legislative intent is also reflected in the range of possible standards of review. Traditionally, the “correctness” standard and the “patent unreasonableness” standard were the only two approaches available to a reviewing court. But in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, a “reasonableness simpliciter” standard was applied as the most accurate reflection of the competence intended to be conferred on the tribunal by the legislator. Indeed, the Court there described the range of standards available as a “spectrum” with a “more exacting end” and a “more deferential end” (para. 30).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-16", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 28–29", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although the language and approach of the “preliminary”, “collateral” or “jurisdictional” question has been replaced by this pragmatic and functional approach, the focus of the inquiry is still on the particular, individual provision being invoked and interpreted by the tribunal. Some provisions within the same Act may require greater curial deference than others, depending on the factors which will be described in more detail below. To this extent, it is still appropriate and helpful to speak of “jurisdictional questions” which must be answered correctly by the tribunal in order to be acting intra vires. But it should be understood that a question which “goes to jurisdiction” is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis. In other words, “jurisdictional error” is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown. (1) Factors to Be Taken into Account\n\nThe factors to be taken into account in determining the standard of review have been canvassed in a number of recent decisions of this Court, and may be divided into four categories. (i) Privative Clauses", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-17", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 30–31", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard. However, the presence of a “full” privative clause is compelling evidence that the court ought to show deference to the tribunal’s decision, unless other factors strongly indicate the contrary as regards the particular determination in question. A full privative clause is “one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded” (Pasiechnyk, supra, at para. 17, per Sopinka J.). Unless there is some contrary indication in the privative clause itself, actually using the words “final and conclusive” is sufficient, but other words might suffice if equally explicit (United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at pp. 331 and 333). At the other end of the spectrum is a clause in an Act permitting appeals, which is a factor suggesting a more searching standard of review.\n\nSome Acts will be silent or equivocal as to the intended standard of review. The Court found in Bradco that the submission of a dispute to a “final settlement” of an arbitrator was “somewhere between a full privative clause and a clause providing for full review by way of appeal” (pp. 331 and 333). Sopinka J. went on to examine other factors to determine that some degree of deference was owed to the arbitrator’s ruling. In essence, a partial or equivocal privative clause is one which fits into the overall process of evaluation of factors to determine the legislator’s intended level of deference, and does not have the preclusive effect of a full privative clause. (ii) Expertise", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-18", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 32", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Described by Iacobucci J. in Southam, supra, at para. 50, as “the most important of the factors that a court must consider in settling on a standard of review”, this category includes several considerations. If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded. In Southam, the Court considered of strong importance the special make-up and knowledge of the Competition Act tribunal relative to a court of law in determining questions concerning competitiveness in general, and the definition of the relevant product market in particular.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-19", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 33", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Nevertheless, expertise must be understood as a relative, not an absolute concept. As Sopinka J. explained in Bradco, supra, at p. 335: “On the other side of the coin, a lack of relative expertise on the part of the tribunal vis-à-vis the particular issue before it as compared with the reviewing court is a ground for a refusal of deference” (emphasis added). Making an evaluation of relative expertise has three dimensions: the court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise. Many cases have found that the legislature has intended to grant a wide margin for decision-making with respect to some issues, while others are properly subject to a correctness standard. Those cases are discussed in the fourth section below, the “Nature of the Problem”. The criteria of expertise and the nature of the problem are closely interrelated.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-20", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 34–35", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Once a broad relative expertise has been established, however, the Court is sometimes prepared to show considerable deference even in cases of highly generalized statutory interpretation where the instrument being interpreted is the tribunal’s constituent legislation. In Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, the B.C. Securities Commission’s definition of the highly general question of what constituted a “material change” under the Securities Act was subjected to an unreasonableness standard. Iacobucci J. stated that “[c]ourts have also enunciated a principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise” (p. 590). This can include the interpretation of a statute which requires recourse to the treaty which it was intended to implement, as was the case in National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, where a patently unreasonableness test was applied to the interpretation of a treaty provision because the regulatory and economic nature of the determination counselled deference notwithstanding the generality of its application.\n\nIn short, a decision which involves in some degree the application of a highly specialized expertise will militate in favour of a high degree of deference, and towards a standard of review at the patent unreasonableness end of the spectrum. (iii) Purpose of the Act as a Whole, and the Provision in Particular", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-21", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 36", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "As Iacobucci J. noted in Southam, supra, at para. 50, purpose and expertise often overlap. The purpose of a statute is often indicated by the specialized nature of the legislative structure and dispute-settlement mechanism, and the need for expertise is often manifested as much by the requirements of the statute as by the specific qualifications of its members. Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes. Thus, in National Corn Growers, supra, at p. 1336, Wilson J. characterized the function of the board in question as one of “management”, partially because of the specialized knowledge of the members of the board, but also because of the range of remedies available upon a determination, including the imposition of countervailing duties by the Minister (at p. 1346). In Southam, the Court found (at para. 48) that the “aims of the Act are more ‘economic’ than they are strictly ‘legal’” because the broad goals of the Act “are matters that business women and men and economists are better able to understand than is a typical judge”. This conclusion was reinforced by the creation in the statute of a tribunal with members having a special expertise in those domains. Also of significance are the range of administrative responses, the fact that an administrative commission plays a “protective role” vis-à-vis the investing public, and that it plays a role in policy development; Pezim, supra, at p. 596.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-22", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 36", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "That legal principles are vague, open-textured, or involve a “multi-factored balancing test” may also militate in favour of a lower standard of review (Southam, at para. 44). These considerations are all specific articulations of the broad principle of “polycentricity” well known to academic commentators who suggest that it provides the best rationale for judicial deference to non-judicial agencies. A “polycentric issue is one which involves a large number of interlocking and interacting interests and considerations” (P. Cane, An Introduction to Administrative Law (3rd ed. 1996), at p. 35). While judicial procedure is premised on a bipolar opposition of parties, interests, and factual discovery, some problems require the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties. Where an administrative structure more closely resembles this model, courts will exercise restraint. The polycentricity principle is a helpful way of understanding the variety of criteria developed under the rubric of the “statutory purpose”. (iv) The “Nature of the Problem”: A Question of Law or Fact?", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-23", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 37", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "As mentioned above, even pure questions of law may be granted a wide degree of deference where other factors of the pragmatic and functional analysis suggest that such deference is the legislative intention, as this Court found to be the case in Pasiechnyk, supra. Where, however, other factors leave that intention ambiguous, courts should be less deferential of decisions which are pure determinations of law. The justification for this position relates to the question of relative expertise mentioned previously. There is no clear line to be drawn between questions of law and questions of fact, and, in any event, many determinations involve questions of mixed law and fact. An appropriate litmus test was set out in Southam, supra, at para. 37, by Iacobucci J., who stated: Of course, it is not easy to say precisely where the line should be drawn; though in most cases it should be sufficiently clear whether the dispute is over a general proposition that might qualify as a principle of law or over a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future. This principle was also articulated by L’Heureux-Dubé J. in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at pp. 599-600, who sought to clarify the limitations of distinctions based on this criterion: In general, deference is given on questions of fact because of the “signal advantage” enjoyed by the primary finder of fact. Less deference is warranted on questions of law, in part because the finder of fact may not have developed any particular familiarity with issues of law. While there is merit in the distinction between fact and law, the distinction is not always so clear.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-24", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 37", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Specialized boards are often called upon to make difficult findings of both fact and law. In some circumstances, the two are inextricably linked. Further, the “correct” interpretation of a term may be dictated by the mandate of the board and by the coherent body of jurisprudence it has developed. In some cases, even where courts might not agree with a given interpretation, the integrity of certain administrative processes may demand that deference be shown to that interpretation of law. Her dissent in that case was founded essentially on her disapproval of the views of the majority on the characterization of the human rights tribunal as enjoying no expertise relative to courts in the understanding and interpretation of human rights Acts. Nevertheless, the principles discussed in the above quotation correctly state the law. This was confirmed in Pasiechnyk, at paras. 36 to 42, where the broad expertise of the Workers’ Compensation Board to determine all aspects of “eligibility” under that system was considered sufficiently broad to include the determination that the term “employer” included claims against the government for its alleged negligence in regulating the works of two companies which had led to workers’ injuries. Claims against the government as regulator were thus barred by virtue of the determination in issue. To allow such a claim “would undermine the purposes of the scheme” which was to “solve . . . the problem of employers becoming insolvent as a result of high damage awards” (para. 42). Such a finding falls squarely within Iacobucci J.’s description of a question of law: a finding which will be of great, even determinative import for future decisions of lawyers and judges.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-25", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 37–38", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The creation of a legislative “scheme” combined with the creation of a highly specialized administrative decision-maker, as well as the presence of a strong privative clause was sufficient to grant an expansive deference even over extremely general questions of law.\n\nKeeping in mind that all the factors discussed here must be taken together to come to a view of the proper standard of review, the generality of the proposition decided will be a factor in favour of the imposition of a correctness standard. This factor necessarily intersects with the criteria described above, which may contradict such a presumption, as the majority of this Court found to be the case in Pasiechnyk, supra. In the usual case, however, the broader the propositions asserted, and the further the implications of such decisions stray from the core expertise of the tribunal, the less likelihood that deference will be shown. Without an implied or express legislative intent to the contrary as manifested in the criteria above, legislatures should be assumed to have left highly generalized propositions of law to courts. (2) The Immigration Act", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-26", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 39", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Jurisdiction is granted to the Convention Refugee Determination Division of the Immigration and Refugee Board in the following terms: 67. (1) The Refugee Division has, in respect of proceedings under sections 69.1 and 69.2, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. 82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court — Trial Division. 83. (1) A judgment of the Federal Court — Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court — Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. (3) Previous Jurisprudence on the Standard of Review", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-27", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 40", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "This is the first time this Court has had the opportunity of considering the standard of review over decisions of the Immigration and Refugee Board. There is surprisingly scant discussion of the issue in previous Federal Court decisions. In most cases, a patent unreasonableness or “perverse or capricious” standard is applied. Those cases involved reviews of findings of credibility of witnesses by the Board: Yuen v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1045 (QL) (C.A.); Franco v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1011 (QL) (C.A.); Sornalingam v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 128, per MacKay J.; Vetter v. Canada (Minister of Employment and Immigration) (1994), 89 F.T.R. 17, per Gibson J.; Ismaeli v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 573 (QL) (T.D.), per Cullen J. In only one case was a correctness standard applied: Connor v. Canada (Minister of Citizenship and Immigration) (1995), 95 F.T.R. 66, per Reed J.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-28", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 41", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the thorough decision of Richard J. in Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.), however, the question before this Court is directly addressed. The case involved a Board determination that the applicants were not refugees because they had an “internal flight alternative”. Richard J. examines s. 82.1 of the Immigration Act and s. 18.1 of the Federal Court Act, which set out the possibility of an application for judicial review of a Board decision, and the grounds upon which such a decision may be reversed. He considers many of the controlling authorities of the day, including Pezim and Bradco. Although conceding that s. 67(1) of the Immigration Act is not a strong privative clause, he points out that many cases rely more on the specialized nature of the tribunal in question than on the presence or absence of a privative clause and notes: (a) that there is a limited structure for applying for judicial review; (b) that appeals from the Trial Division may only be taken when certified as a “serious question of general importance” under s. 83(1) of the Immigration Act; (c) that the structure of refugee determination is not typically adversarial in nature, and that members of the Board have wide powers as to production of evidence and fact-finding; (d) that there is no adverse party; (e) that the international law context, and the implementation of the Refugee Convention in Canadian law is highly complex and therefore requires specialized knowledge; (f) that the members of the Board are experts in their field and draw upon detailed, expert reports from the Documentation Centre of Employment and Immigration Canada. He relies extensively on a commentary by Professor James Hathaway on the Refugee Division, including, at p.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-29", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 41", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "758, the following excerpt: These evidentiary and contextual concerns make departure from traditional modes of adjudication imperative. We need expert, engaged, activist decision-makers who will pursue substantive fairness rather than technocratic justice. We must not view refugee claimants as opponents or threats, but rather as persons seeking to invoke a right derived from international law. It is the commitment to this kind of flexibility and sensitivity which led Parliament to abolish the previous court of record charged with refugee status determination, and to replace it with an expert tribunal with inquisitorial, non-adversarial jurisdiction. Finally, he distinguishes this Court’s decision in Mossop, supra, contending that the position of a human rights tribunal is different because its “determination is unrelated to issues of expertise or specialized knowledge and does not require a high degree of deference”. He goes on to say: “The questions at issue here are not broad questions involving general principles of statutory interpretation and legal reasoning, but the interpretation of a statutory definition within a specific international law and regulatory framework.” He concludes from all these considerations that the standard is patent unreasonableness, and that standard ought to apply even to “legal questions before it” (p. 761). On this basis, Richard J. rejected the application for judicial review, finding that the determination of “internal flight alternative” was not patently unreasonable. (4) The Proper Standard: Correctness", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-30", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 42", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Richard J.’s judgment in Sivasamboo, described above in some detail, presents admirably the case for a high level of deference to the decision of the Board. In my judgment, however, applying the pragmatic and functional analysis to the Act indicates that the decision of the Board in this case should be subjected to a standard of correctness.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-31", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 43", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the legislative intention as to the standard of review is the use of the words “a serious question of general importance” (emphasis added). The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice. Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the “general importance” of the question, the court accept decisions of the Board which are wrong in law, even clearly wrong in law, but not patently unreasonable? The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal — and inferentially, the Federal Court, Trial Division — is permitted to substitute its own opinion for that of the Board in respect of questions of general importance. This view accords with the observations of Iacobucci J. in Southam, supra, at para. 36, that a determination which has “the potential to apply widely to many cases” should be a factor in determining whether deference should be shown. While previous Federal Court decisions, including, arguably, the dispute in Sivasamboo, involve significant determinations of facts, or at the highest, questions of mixed fact and law, with little or no precedential value, this case involves a determination which could disqualify numerous future refugee applicants as a matter of law.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-32", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 43–44", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Indeed, the decision of the Board in this case would significantly narrow its own role as an evaluator of fact in numerous cases.\n\nIn short, s. 83(1) of the Act grants a statutory right of appeal based upon the criterion of “generality”. The principle described in Southam and applied in many other cases, which is really no more than an assumption as to legislative intent, is reinforced by explicit statutory inclusion.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-33", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 45", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Moreover, the Board appears to enjoy no relative expertise in the matter of law which is the object of judicial review here. A clear majority of this Court has found in a number of cases that deference should not be shown by courts to human rights tribunals with respect to “general questions of law” (Mossop, supra, at p. 585), even legal rules indisputably at the core of human rights adjudication. The categorical nature of this rule has been mitigated by observations in other cases, however. As La Forest J. stated for the entire Court in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at para. 29: That having been said, I do not think the fact-finding expertise of human rights tribunals should be restrictively interpreted, and it must be assessed against the backdrop of the particular decision the tribunal is called upon to make. . . . A finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate. . . . Given the complexity of the evidentiary inferences made on the basis of the facts before the Board, it is appropriate to exercise a relative degree of deference to the finding of discrimination, in light of the Board’s superior expertise in fact-finding, a conclusion supported by the existence of words importing a limited privative effect into the constituent legislation. [Emphasis added.] A similar approach is adopted by the majority in University of British Columbia v. Berg, [1993] 2 S.C.R. 353, at p. 370.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-34", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 46", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although the precise degree of deference which should be accorded to a human rights tribunal may still be open to question, the factors militating against deference in those cases apply with much greater force to the issues here. In those cases, the relationship relevant for considering the proper standard of review was that between a tribunal with specific expertise and experience in human rights adjudication, and provisions whose purpose is to protect human rights. The provision in question here shares that purpose. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at p. 733, La Forest J. found the purpose underlying the Convention to be “the international community’s commitment to the assurance of basic human rights without discrimination”. As I will explain in the course of the next section, Article 1F(c) is at the core of this human rights purpose.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-35", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 47", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "But the Board’s expertise in matters relating to human rights is far less developed than that of human rights tribunals. The expertise of the Board is in accurately evaluating whether the criteria for refugee status have been met and, in particular, assessing the nature of the risk of persecution faced by the applicant if returned to his or her country of origin. Unlike the situation of a human rights tribunal, the relationship between the expertise and the provision in question here is remote. Only 10 percent of the members of the Board are required to be lawyers (s. 61(2)) and there is no requirement that there be a lawyer on every panel. While this may not be a liability for the purposes of assessing the risk of persecution of an applicant if returned to his or her country of nationality, it renders unthinkable reposing the broad definition of a basic human rights guarantee exclusively in the hands of the Board. Nor is there any indication that the Board’s experience with previous factual determinations of risk of persecution gives it any added insight into the meaning or desirable future development of the provision in question here. Unlike many cases involving determinations by human rights tribunals, this case does not involve any significant “impregnation” of legal principle with fact, as demonstrated by the ease with which the reviewing court was able to extract a question of general importance for the purposes of s. 83(1). Here, the legal principle is easily separable from the undisputed facts of the case and would undoubtedly have a wide precedential value. It bears repeating that with this determination, the tribunal is in fact seeking to stifle the application of its own expertise, rather than exercise it.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-36", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 47–49", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The factual expertise enjoyed by this administrative decision-maker does not aid it in the interpretation of this general legal principle.\n\nNor can the Board be characterized as performing a “managing” or “supervisory” function, as was found in Southam and National Corn Growers. The Board itself is not responsible for policy evolution. The purpose of the Convention — and particularly that of the exclusions contained in Article 1F — is clearly not the management of flows of people, but rather the conferral of minimum human rights’ protection. The context in which the adjudicative function takes place is not a “polycentric” one of give-and-take between different groups, but rather the vindication of a set of relatively static human rights, and ensuring that those who fall within the prescribed categories are protected.\n\nAdded to these indications of the intent of the legislator with regard to the development of general legal principles, is the absence of a strong privative clause. Indeed, read in the light of s. 83(1), it appears quite clear that the privative clause, such as it is, is superseded with respect to questions of “general importance”. As has been emphasized above, the “pragmatic and functional” approach allows differing standards of deference even within different sections of the same Act, and with regard to different types of decisions taken by the tribunal in question. Here, the wording of the privative clause goes hand in hand with the fourth factor of the functional and pragmatic analysis, namely, that determinations of abstract principles with wide application is a factor militating against deference.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-37", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 50–51", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "I conclude that a correctness standard applies to determinations of law by the Board. Sivasamboo dealt with review of a question of a significantly different nature and I wish to emphasize that I make no comment about the correctness of that decision, specific as it is to the facts presented there. B. Principles of Treaty Interpretation: Determining the Purpose of Article 1F(c)\n\nAlthough some non-governmental organizations advocated the determination of exclusion under Article 1F(c) of the Convention by the United Nations High Commissioner for Refugees, it was ultimately decided that each contracting state would decide for itself when a refugee claimant is within the scope of the exclusion clause (J. C. Hathaway, The Law of Refugee Status (1991), at pp. 214-15). Since the purpose of the Act incorporating Article 1F(c) is to implement the underlying Convention, the Court must adopt an interpretation consistent with Canada’s obligations under the Convention. The wording of the Convention and the rules of treaty interpretation will therefore be applied to determine the meaning of Article 1F(c) in domestic law (Ward, supra, at pp. 713-16).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-38", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 52", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Those rules are succinctly articulated in the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (“Vienna Convention”), which states: Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-39", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 52–53", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.\n\nThese rules have been applied by this Court in two recent cases, one involving direct incorporation of treaty provisions (Thomson v. Thomson, [1994] 3 S.C.R. 551) and another involving a section of the Immigration Act intended to implement Canada’s obligations under the Convention (Ward, supra). In the latter case, La Forest J. makes use of several interpretative devices: the drafting history of, and preparatory work on the provision in question; the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (“UNHCR Handbook”), and previous judicial comment on the purpose and object of the treaty. Indeed, at p. 713, La Forest J. was willing to consider submissions of individual delegations in the travaux préparatoires, although he recognized that, depending on their content and on the context, such statements “may not go far” in supporting one interpretation over another.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-40", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 54", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although these rules of interpretation were accepted in general terms in the courts below and by the parties, there is substantial disagreement as to precisely what those rules mean in the context of Article 1F(c) of the Convention as incorporated by s. 2(1) of the Act. In deciding on the relative weight to be accorded the various interpretative sources made available under the Vienna Convention, Strayer J.A. found that the terms “purposes and principles of the United Nations” were relatively clear. He was also of the opinion that the travaux préparatoires were confused, ambiguous, or unrepresentative, and therefore, “completely unhelpful”. The UNHCR Handbook, which was accepted as a valid source under Article 31(3)(b) of the Vienna Convention, was considered “far from emphatic” as to the meaning of Article 1F(c). Finally, the categorization of the purpose of the Convention as a “‘human rights’ instrument” did not favour the applicant. Indeed, Strayer J.A. tacitly rejected this purpose as an interpretative guide by adopting the words of Robertson J.A. in Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), at p. 307: As persuasive as the commentaries may be, I am bound to approach the application of the exclusion clause, first, by reference to the existing jurisprudence of this Court and, second, by reference to the clear intent of the signatories to the Convention. Where, however, there is an unresolved ambiguity or issue, the construction most agreeable to justice and reason must prevail.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-41", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 55", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "In my view, the Federal Court of Appeal erred in dismissing the objects and purposes of the treaty, and in according virtually no weight to the indications provided in the travaux préparatoires. As will be seen later, the legislative history of Article 1F indicates that the signatories to the Convention wished to ascribe a special meaning to the words “purposes and principles of the United Nations” in the context of the Convention. In Ward, La Forest J. carefully used each of these interpretative tools as a means of understanding the objects and purposes of the Convention as a whole, and the particular provisions being interpreted. The extremely general words in Article 1F(c) are not so unambiguous as to foreclose examination of other indications of the proper scope of the provision. An examination of the purpose and context of the treaty as a whole, as well as the purpose of the individual provision in question as suggested by the travaux préparatoires, provide helpful interpretative guidelines.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-42", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 56", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The starting point of the interpretative exercise is, first, to define the purpose of the Convention as a whole, and, second, the purpose and place of Article 1F(c) within that scheme. In Ward, La Forest J., speaking for the entire Court at p. 709, stated that: International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. For this reason, James Hathaway refers to the refugee scheme as “surrogate or substitute protection”, activated only upon failure of national protection; see The Law of Refugee Status (1991), at p. 135. Using a textual analysis of the Convention itself, and taking account of the views of commentators, La Forest J., at p. 733, defines the purpose of the Convention with reference to the specific issue of the definition of refugee, which is precisely the issue in this case as well: Underlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows: Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-43", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 56–57", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "It sets out, in a general fashion, the intention of the drafters and thereby provides an inherent limit to the cases embraced by the Convention. Hathaway, supra, at p. 108, thus explains the impact of this general tone of the treaty on refugee law: The dominant view however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard. This theme sets the boundaries for many of the elements of the definition of “Convention refugee”.\n\nThe human rights character of the Convention is further confirmed by the “Objectives” section of the Act: 3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need . . . (g) to fulfil Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted; [Emphasis added.] This overarching and clear human rights object and purpose is the background against which interpretation of individual provisions must take place.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-44", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 58", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The purpose of Article 1 is to define who is a refugee. Article 1F then establishes categories of persons who are specifically excluded from that definition. The purpose of Article 33 of the Convention, by contrast, is not to define who is and who is not a refugee, but rather to allow for the refoulement of a bona fide refugee to his or her native country where he or she poses a danger to the security of the country of refuge, or to the safety of the community. This functional distinction is reflected in the Act, which adopts Article 1F as part of s. 2, the definitional section, and provides for the Minister’s power to deport an admitted refugee under s. 53, which generally incorporates Article 33. Thus, the general purpose of Article 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention. Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status. Although all of the acts described in Article 1F could presumably fall within the grounds for refoulement described in Article 33, the two are distinct. This reasoning must also be applied when considering whether the acts falling under Article 1F(c) must be acts performed outside the country of refuge, as argued by the appellant. In my opinion, the refoulement provisions cannot be invoked to read into Article 1F(c) any such limitation. Where geographical limitations were required, the Convention specifically provided for them, as evidenced by the terms of Article 1F(b). The relevant criterion here is the time at which refugee status is obtained.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-45", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 58", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "In other words, Article 1F(c) being referable to the recognition of refugee status, any act performed before a person has obtained that status must be considered relevant pursuant to Article 1F(c).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-46", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 59", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Some light may be shed on the purpose of Article 1F(c) as distinct from Article 1F(a) and F(b) from the travaux préparatoires and from the contemporaneous meaning of the terms used. The precursor of Article 1F stated: Article I Definition of the term “refugee” D. No contracting State shall apply the benefits of this Convention to any person who in its opinion has committed a crime specified in article VI of the London Charter of the International Military Tribunal or any other act contrary to the purposes and principles of the Charter of the United Nations. [Emphasis added.] (UN Doc. E/L. 82) The inclusion of the underlined words, which eventually were incorporated as Article 1F(c), generated considerable discussion in the Social Committee of the Economic and Social Council where the Convention was being negotiated. The Canadian, Chilean, and Pakistani delegates all expressed concern that the vague and potentially overbroad exclusionary clause would undermine the primary purpose of the Convention, and give states a means to easily reject individuals who deserved protection. The French delegate responded that the provision was aimed at “certain individuals who, though not guilty of war crimes, might have committed acts of similar gravity against the principles of the United Nations, in other words, crimes against humanity” (UN Doc. E/AC.7/SR.166, 22 August 1950, at p. 4). He was concerned that acts criminalized by the London Charter of the International Military Tribunal, 82 U.N.T.S. 280, would only be found to exist where a war had actually taken place. This would allow all manner of atrocities to be committed without the London Charter being violated simply because of the absence of military, interstate conflict.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-47", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 59", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The reference to the London Charter alone, therefore, would fail to include tyrants . . . guilty of acts contrary to the purposes and principles of the Charter, who had by such acts helped to create the fear from which the refugees had fled. The fact that they had themselves become suspect to their superiors and were in their turn a prey to the fear which they had themselves created, would . . . certainly not [entitle them] to the automatic benefit of the international protection granted to refugees. (E/AC.7/SR.166, at p. 6)", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-48", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 60", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "While a statement such as this one is far from authoritative in determining the purpose of what emerged as Article 1F(c), two points may be taken from these statements. The first is that the London Charter, in addition to describing crimes against the peace and war crimes, also described “crimes against humanity” such as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal” (as quoted in H. M. Kindred et al., International Law Chiefly as Interpreted and Applied in Canada (1993)), at p. 448 (emphasis added). As articulated in the London Charter, then, a crime against humanity was tied to the punishment of crimes of war and crimes in times of peace. Although as it finally emerged, Article 1F(a) actually spelled out the individual offences contained in the London Charter, including “a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”, there is a clearly articulated concern by the French delegate, of which he persuaded the other delegations, that the crimes against humanity described in the London Charter were confined to those related to the occurrence of a war. Though initially one of the objectors who considered the provision dangerously vague, the Canadian delegate eventually agreed that the individuals caught by Article 1F(c) and not otherwise identified by the London Charter were those “persons who had abused positions of authority by committing crimes against humanity, other than war crimes” (E/AC.7/SR.166, at p. 10 (emphasis added)).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-49", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 60–61", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "In short, the delegates whose minds were changed by the statement of the French delegate believed that they were identifying non-war-related crimes against humanity and that this was a distinct concept worthy of a separate provision, even if the acts falling into that category could not be clearly enumerated at that time.\n\nIt must also be noted that the principle of exclusion by reason of acts contrary to the purposes and principles of the United Nations was found in embryonic form in the International Refugee Organization Constitution which also sought to exclude “those who, since the end of the Second World War, had participated in any organization seeking the overthrow by armed force of a government of a UN member State, or in any terrorist organization; or who were leaders of movements hostile to their government or sponsors of movements encouraging refugees not to return to their country of origin” (G. S. Goodwin-Gill, The Refugee in International Law (2nd ed. 1996), at p. 108). This is consistent with the position of the British representative who stated that acts contrary to the purposes and principles of the UN comprised the subversion and overthrow of democratic regimes. Other participants were opposed to this interpretation, however, because it was seen to conflict with the right to self-determination (Hathaway, supra, at p. 228). The confusion probably explains why the UNHCR Handbook, at paras. 162-63, does not consider that Article 1F(c) introduces “any specific new element”.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-50", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 62", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Of course, the purposes and principles of the United Nations are set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations, Can. T.S. 1945 No. 7. But the statement found there is principally organizational; its general wording also allows for a dynamic interpretation of state obligations, which must be adapted to the changing international context. The principles set out in the UN Charter are in fact often developed in other international instruments and in decisions of the International Court of Justice, as well as in the jurisprudence of signatory states. Hathaway, supra, at p. 227, concludes that the multiple interpretations of Article 1F(c) “mirror its confused drafting history”. The article is a residual clause which the UNHCR Handbook suggests, “due to its very general character, should be applied with caution” (para. 163). In reading the travaux préparatoires, one is easily convinced that the delegates participating in the Social Committee meetings intended to give the words “purposes and principles of the United Nations” a narrower and more focused meaning than that which would naturally be inferred by reading the UN Charter. The work of the drafting subcommittee and the resolutions of various bodies that followed are evidence of an effort to create a consensus on the special meaning to be given to the terms used in Article 1F(c).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-51", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 63–64", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "What is crucial, in my opinion, is the manner in which the logic of the exclusion in Article 1F generally, and Article 1F(c) in particular, is related to the purpose of the Convention as a whole. The rationale is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a Convention designed to protect those refugees. As La Forest J. observes in Ward, supra, at p. 733, “actions which deny human dignity in any key way” and “the sustained or systemic denial of core human rights . . . se[t] the boundaries for many of the elements of the definition of ‘Convention refugee’”. This purpose has been explicitly recognized by the Federal Court of Appeal in the context of the grounds specifically enumerated in Article 1F(a) in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, where Linden J.A. stated (at p. 445): “When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. International criminals, on all sides of the conflicts, are rightly unable to claim refugee status.”\n\nThis brings me back to the second point to be taken from the declarations of the French delegate referred to earlier. In the light of the general purposes of the Convention, as described in Ward, and elsewhere, and the indications in the travaux préparatoires as to the relative ambit of Article 1F(a) and F(c), the purpose of Article 1F(c) can be characterized in the following terms: to exclude those individuals responsible for serious, sustained or systemic violations of fundamental human rights which amount to persecution in a non-war setting. C. What Acts Are “Contrary to the Purposes and Principles of the United Nations”?", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-52", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 65", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Determining the precise content of this phrase is significantly easier having defined a discrete purpose which Article 1F(c) was intended to play within the structure and purposes of the Convention. The parties before us presented various alternatives as to what should be included within the section and sought to do so with a high degree of particularity. In my view, attempting to enumerate a precise or exhaustive list stands in opposition to the purpose of the section and the intentions of the parties to the Convention. There are, however, several types of acts which clearly fall within the section. The guiding principle is that where there is consensus in international law that particular acts constitute sufficiently serious and sustained violations of fundamental human rights as to amount to persecution, or are explicitly recognized as contrary to the purposes and principles of the United Nations, then Article 1F(c) will be applicable.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-53", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 66", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Several categories of acts fall within this principle. First, where a widely accepted international agreement or United Nations resolution explicitly declares that the commission of certain acts is contrary to the purposes and principles of the United Nations, then there is a strong indication that those acts will fall within Article 1F(c). The Declaration on the Protection of All Persons from Enforced Disappearance (GA Res. 47/133, 18 December 1992, Article 1(1)), the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (GA Res. 3452 (XXX), 9 December 1975, Article 2), and the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism (GA Res. 51/210, 16 January 1997, Annex, Article 2), all designate acts which are contrary to the purposes and principles of the United Nations. Where such declarations or resolutions represent a reasonable consensus of the international community, then that designation should be considered determinative.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-54", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 67", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Similarly, other sources of international law may be relevant in a court’s determination of whether an act falls within Article 1F(c). For example, determinations by the International Court of Justice may be compelling. In the case United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, p. 3, at para. 91, the court found: Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights. The International Court of Justice used even stronger language in the advisory opinion concerning the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 16, at para. 131, finding that the policy of apartheid “constitute[s] a denial of fundamental human rights [and] is a flagrant violation of the purposes and principles of the Charter”.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-55", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 68", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Another important aspect of the exclusion under Article 1F(c) is the inference that violators of the principles and purposes of the UN must be persons in positions of power. This inference is drawn by the UNHCR Handbook at paras. 162-63 and in particular by the Canadian delegate to the Social Committee meetings of 1950 and 1951. While many commentators share this view (Hathaway, supra, at p. 229; A. Grahl-Madsen, The Status of Refugees in International Law (1966), vol. 1, at p. 286; and Kälin, Köfner and Nicolaus, in Goodwin-Gill, supra, at p. 110, note 162), the jurisprudence of signatory states is evolving along a different stream. Goodwin-Gill reports in his treatise, at p. 113, that the Tehran decision was the basis of the exclusion of a refugee under Article 1F(c) by Australian immigration authorities, indicating that it may be possible for non-state actors to be excluded by the provision. He contrasts this approach with that in France and Germany which appear to require that the acts be clothed in the authority of the state. Although it may be more difficult for a non-state actor to perpetrate human rights violations on a scale amounting to persecution without the state thereby implicitly adopting those acts, the possibility should not be excluded a priori. As mentioned earlier, the Court must also take into consideration that some crimes that have specifically been declared to contravene the purposes and principles of the United Nations are not restricted to state actors.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-56", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 69", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "In this case, we are concerned with drug trafficking. There is no indication in international law that drug trafficking on any scale is to be considered contrary to the purposes and principles of the United Nations. The respondent submitted evidence that the international community had developed a co-ordinated effort to stop trafficking in illicit substances through numerous UN treaties, declarations, and institutions. It has not, however, been able to point to any explicit declaration that drug trafficking is contrary to the purposes and principles of the United Nations, nor that such acts should be taken into consideration in deciding whether to grant a refugee claimant asylum. Such an explicit declaration would be an expression of the international community’s judgment that such acts should qualify as tantamount to serious, sustained and systemic violations of fundamental human rights constituting persecution.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-57", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 70–71", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The second category of acts which fall within the scope of Article 1F(c) are those which a court is able, for itself, to characterize as serious, sustained and systemic violations of fundamental human rights constituting persecution. This analysis involves a factual and a legal component. The court must assess the status of the rule which has been violated. Where the rule which has been violated is very near the core of the most valued principles of human rights and is recognized as immediately subject to international condemnation and punishment, then even an isolated violation could lead to an exclusion under Article 1F(c). The status of a violated rule as a universal jurisdiction offence would be a compelling indication that even an isolated violation constitutes persecution. To that end, if the international community were ever to adopt the Draft Statute of the International Criminal Court, UN Doc. A/CN.4/L.491/Rev.2, which currently includes trafficking in narcotics within its jurisdiction, along with war crimes, torture and genocide, then there would be a much greater likelihood of a court being able to find a serious violation of human rights by virtue of those activities.\n\nA serious and sustained violation of human rights amounting to persecution may also arise from a particularly egregious factual situation, including the extent of the complicity of the applicant. Assessing the factual circumstances of a human rights violation as well as the nature of the right violated would allow a domestic court, for example, to determine on its own that the events in the Tehran hostage-taking warrant exclusion under Article 1F(c).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-58", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 72", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "In this case there is simply no indication that the drug trafficking comes close to the core, or even forms a part of the corpus of fundamental human rights. The respondent sought to bring the Court’s attention to a novel category of international offence devised by M. C. Bassiouni called “crimes of international concern” (International Criminal Law, vol. 1, Crimes (1986), at pp. 135-63). Those “crimes” evince certain characteristics indicating that the international community does view their violation as particularly serious and worthy of immediate sanction; however, the bar appears to be set too low, including such categories of offence as “interference with submarine cables” and “environmental protection”, as well as drug trafficking and eight other categories.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-59", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 73", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is also necessary to take account of the possible overlap of Article 1F(c) and F(b) with regard to drug trafficking. It is quite clear that Article 1F(b) is generally meant to prevent ordinary criminals extraditable by treaty from seeking refugee status, but that this exclusion is limited to serious crimes committed before entry in the state of asylum. Goodwin-Gill, supra, at p. 107, says: With a view to promoting consistent decisions, UNHCR proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery. The parties sought to ensure that common criminals should not be able to avoid extradition and prosecution by claiming refugee status. Given the precisely drawn scope of Article 1F(b), limited as it is to “serious” “non-political crimes” committed outside the country of refuge, the unavoidable inference is that serious non-political crimes are not included in the general, unqualified language of Article 1F(c). Article 1F(b) identifies non-political crimes committed outside the country of refuge, while Article 33(2) addresses non-political crimes committed within the country of refuge. Article 1F(b) contains a balancing mechanism in so far as the specific adjectives “serious” and “non-political” must be satisfied, while Article 33(2) as implemented in the Act by ss. 53 and 19 provides for weighing of the seriousness of the danger posed to Canadian society against the danger of persecution upon refoulement.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-60", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 73–74", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "This approach reflects the intention of the signatory states to create a humanitarian balance between the individual in fear of persecution on the one hand, and the legitimate concern of states to sanction criminal activity on the other. The presence of Article 1F(b) suggests that even a serious non-political crime such as drug trafficking should not be included in Article 1F(c). This is consistent with the expression of opinion of the delegates in the Collected Travaux Préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees (1989), vol. III, at p. 89.\n\nThere is no rational connection between the objectives of the Convention and the objectives of the limitation on Article 1F(c) as stated by the respondent. Until the international community makes clear its view that drug trafficking, in one form or another, is a serious violation of fundamental human rights amounting to persecution, then there can be no rationale for counting it among the grounds of exclusion. The connection between persecution and the international refugee problem is what justifies the definitional exclusions in Article 1F(a) and F(c). Acts which fall short of persecution may well warrant refoulement under Article 33, and the Act has provided a procedure for determination of the merits of that issue. The a priori denial of the fundamental protections of a treaty whose purpose is the protection of human rights is a drastic exception to the purposes of the Convention as articulated in Ward, supra, and can only be justified where the protection of those rights is furthered by the exclusion. VI. Disposition", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-61", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 75–77", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Even though international trafficking in drugs is an extremely serious problem that the United Nations has taken extraordinary measures to eradicate, in the absence of clear indications that the international community recognizes drug trafficking as a sufficiently serious and sustained violation of fundamental human rights as to amount to persecution, either through a specific designation as an act contrary to the purposes and principles of the United Nations (the first category), or through international instruments which otherwise indicate that trafficking is a serious violation of fundamental human rights (the second category), individuals should not be deprived of the essential protections contained in the Convention for having committed those acts. Article 33 and its counterparts in the Act are designed to deal with the expulsion of individuals who present a threat to Canadian society, and the grounds for such a determination are wider and more clearly articulated. It is therefore clear that my determination of the scope of Article 1F(c) of the Convention, as incorporated in domestic law by s. 2(1) of the Act, does not preclude the Minister from taking appropriate measures to ensure the safety of Canadians.\n\nIn my view, the appellant’s conspiring to traffic in a narcotic is not a violation of Article 1F(c).\n\nI would allow the appeal and return the matter to the Convention Refugee Determination Division for consideration under Article 33 of the Convention, and ss. 19 and 53 of the Act, if the respondent chooses to proceed. The reasons of Cory and Major JJ. were delivered by", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-62", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 78–81", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Cory J. (dissenting) -- Mr. Pushpanathan was a member of a group convicted of trafficking in heroin with a street value of $10 million. Obviously this trafficking was on a large scale. He was sentenced to eight years which confirmed his role as one of the ringleaders.\n\nThe United Nations considers heroin to be the most dangerous of illicit drugs. Trafficking in that drug is indeed a despicable crime. It will be demonstrated that its consumption leads consumers, almost inexorably, to commit crimes to satisfy their addiction. The potential profits are so high that it frequently leads to criminal activity and money laundering. It can lead to corruption of customs officials, police and judicial officers. It is a crime with such grievous consequences that it tears at the very fabric of society.\n\nThus it is apparent that Pushpanathan was convicted of a very serious crime that has devastating consequences. The grave nature of the crime cannot be readily discounted and forgotten. However even the basest criminal is entitled to exercise all the rights to which he is entitled.\n\nIt is necessary to review and consider the effects of drug trafficking in Canada and the world, but before doing so I wish to confirm my agreement with Bastarache J. that the applicable standard of review is one of correctness. I. Standard of Review", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-63", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 82–83", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "What constitutes an act contrary to the purposes and principles of the United Nations for the purposes of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”), is a question of law. While the Immigration and Refugee Board must be accorded some deference in its findings of fact, that deference should not be extended to a finding on a question of law. The Board cannot be said to have any particular expertise in legal matters. Therefore the issue is whether the Board’s decision on the question of law was correct. II. Illicit Drug Trafficking: Background A. Impact in Canada (1) Incidence of Illicit Drug Use and Trafficking in Canada\n\nIllicit drug use and trafficking is a serious problem in Canada and those that traffic in dangerous drugs must be a very real concern for all Canadians. Recent information shows that there has been an increase both in the use of illicit drugs and in the incidence of drug offences. According to a report of the Canadian Centre on Substance Abuse, illicit drug use increased substantially from 1993 to 1994: cannabis from 4.2 to 7.4 percent; cocaine from 0.3 to 0.7 percent; LSD, speed or heroin from 0.3 to 1.1 percent (D. McKenzie, Canadian Profile: Alcohol, Tobacco & Other Drugs (1997), at p. 91).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-64", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 84–85", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The number of drug‑related incidents reported annually has increased in each of the past several years. In 1993, 56,811 incidents were reported (Canadian Centre for Justice Statistics, Canadian Crime Statistics 1993, at p. 52); in 1994, that number had increased to 60,594 (Canadian Centre for Justice Statistics, Canadian Crime Statistics 1994, at p. 16). The latest reports show another increase from 1995 to 1996; there were 65,106 drug‑related incidents in 1996, which represented a 4.4 percent increase over the previous year (Juristat, vol. 17, No. 8, 1997, at p. 10). At the end of 1996, there were 2,899 drug offenders incarcerated in federal institutions, constituting 21.3 percent of the federal prison population (L. L. Motiuk and R. L. Belcourt, Research Branch, Correctional Service of Canada, Homicide, Sex, Robbery and Drug Offenders in Federal Corrections: An End‑of‑1996 Review, at p. 13). (2) Drugs and Crime\n\nDrug offences such as possession and trafficking are only part of the link between the drug trade and criminality. There is an established connection between heavy drug use and crimes motivated by the need to finance a drug habit (Juristat, vol. 14, No. 6, 1994, at p. 5). A Canadian survey of federal inmates showed that 40 percent of men were drug users and half of those had engaged in criminal activity to get drugs. For women, the ratio is even greater: 25 percent of female inmates in Canada committed their crimes solely to obtain drugs (ibid., p. 12).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-65", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 86–88", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "In addition, the illegal drug trade is known to involve violence as a means of resolving disputes and maintaining discipline (ibid., p. 9). In 1996, 56 homicides, that is to say one in ten, were reported by police to be drug‑related; this was said to be similar to averages for other years (Juristat, vol. 17, No. 9, 1997, at p. 10).\n\nFinally, it is well established that the consumption of licit and illicit drugs increases the rate of criminality generally, not just offences directly related to drugs. Among a sample of federal male inmates, over half were under the influence of alcohol or other drugs when they committed at least one of their crimes (Juristat, vol. 14, supra, at p. 11). Seventy‑one percent of those of those who had consumed drugs said they would not have committed the crime if they had not taken the drugs (ibid., p. 12). Thus, as might be expected, U.S. research indicates that drug abusers are more likely to be re‑arrested than non‑abusers (Bureau of Justice Statistics, Drugs and Crime Facts, 1994, at p. 26). Furthermore, research indicates that from 30 to 50 percent of those convicted of drug offences re‑offend (ibid.; Canadian Centre for Justice Statistics, An Examination of Recidivism in Relation to Offence Histories and Offender Profiles (1993), at p. 21).\n\nIn the face of all of this evidence, it is impossible to underestimate the harm that is done to Canadian society in the form of criminal activity, often violent, by the trafficking of illicit drugs. Unfortunately, there are also other costs associated with illicit drug trafficking and use, which reflect the widespread harm caused by these activities. (3) Social and Economic Costs of Illicit Drug Use", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-66", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 89–91", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity.\n\nIn Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion annually (Canadian Centre on Substance Abuse, The Costs of Substance Abuse in Canada: Highlights (1996), at p. 2). Of this amount, the cost flowing from illicit drugs is $1.4 billion (McKenzie, supra, at p. 227). In 1992 there were 732 deaths, 7,095 hospitalizations and 58,571 hospital days in Canada attributable to illicit drugs (ibid., p. 91). Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims (Costs of Substance Abuse in Canada, supra, at p. 6).\n\nThese significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world. B. International Impacts (1) Extent of the Problem", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-67", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 92", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Global consumption of illicit drugs is difficult to estimate, due to the lack of international information gathering facilities and the difficulty of comparing national data. It is clear, however, that illicit drug consumption increased throughout the world in the 1980s and 1990s, and the upward trend is thought likely to continue (Commission on Narcotic Drugs, Economic and Social Consequences of Drug Abuse and Illicit Trafficking: An Interim Report, UN Doc. E/CN.7/1995/3, 9 November 1994, at p. 14). The problem of drug abuse has also been increasing in severity as well as in scope. There has been an increase not only in the absolute number of drug abusers, but also in instances of heroin and amphetamine use, and intravenous drug abuse. Heroin, opium and cocaine are increasingly being injected, with all of the increased health risks that injection entails (Commission on Narcotic Drugs, Reduction of Illicit Demand for Drugs: Prevention Strategies Including Community Participation ‑‑ World situation with respect to drug abuse: Report of the Secretariat, UN Doc. E/CN.7/1995/5, 10 January 1995, at pp. 3‑4). About 20 percent of the world’s HIV/AIDS population inject drugs (UN International Drug Control Programme, World Drug Report (1997), at p. 91). Especially disturbing are reports of increasing numbers of young people abusing drugs. For example, in Pakistan the proportion of people who began using heroin between the ages of 15 and 20 has doubled to almost 24 percent; in the U.S., use of marijuana and cocaine amongst eighth grade students is reported to have doubled between 1991 and 1994 (ibid., p. 86).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-68", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 93–95", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Production of illicit drugs has significantly increased over the past 10 to 15 years. Countries traditionally associated with the production of drugs have also become major consumers, and are now part of the global expansion of markets for illicit drugs (World situation with respect to drug abuse, supra, at p. 3). It is estimated that over 300 tonnes of heroin were produced annually in the 1990s, and enough coca leaf was produced in 1996 to yield 1,000 tonnes of cocaine (World Drug Report, supra, at p. 18).\n\nConservative estimates of the annual global turnover of the illicit drug industry are from US$400 to 500 billion. This is approximately one tenth of total international trade, and seven to eight times the amount spent on official development assistance each year (Economic and Social Consequences of Drug Abuse and Illicit Trafficking, supra, at p. 8). The drug trade has become increasingly organized, especially for cocaine and heroin, and is controlled by organized groups and in some cases cartels. At the upper levels, control is highly centralized (World Drug Report, supra, at p. 123). (2) Economic and Social Costs of Illicit Drug Use and Trafficking\n\nThe economic costs of drug trafficking and abuse are even greater in countries other than in Canada. They include enforcement, legal, prevention, care and rehabilitation costs. In all parts of the world, drug abuse reduces productivity (Economic and Social Consequences of Drug Abuse and Illicit Trafficking, supra, at p. 19). In drug‑producing countries, some employment is generated, but less than is generally believed (ibid.). Drug money is often invested in sectors that create or maintain unproductive jobs (ibid., p. 20).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-69", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 96–97", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Other economic costs can include inflated costs of food and real estate as a result of drug cultivation and the investment of illicit profits in land (ibid., p. 24). This inflation causes increased hardship for local communities. Furthermore, income disparities in society are increased by both production and consumption. The hierarchical nature of the illicit drug industry means that profits are received by only a small number of people. At the top level, the entire industry is controlled by a few individuals (ibid., p. 25).\n\nIn the short term, drug exports appear to be beneficial to some countries by generating much‑needed foreign exchange, in some cases as much as half the amount of total legal exports. Despite the short term beneficial effects on local economies, the long term effects are negative. The failure to develop alternative exports creates a dependence on illicit drug exports and a consequent vulnerability (ibid., pp. 25‑26).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-70", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 98–99", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is estimated that some US$300 to 500 billion per year from the illicit drug industry are available internationally for laundering. These amounts are staggering when compared to the gross national products of many developing countries (ibid., p. 26). Investment of illicit proceeds and laundering results in significant distortions of national economies. In states in transition that are rapidly moving state‑owned assets into the private sector, problems occur when those assets become the target of criminal finance. In all parts of the world, the presence of large amounts of illicit drug money invested in an economy makes macro‑economic policy and management extremely difficult. Drug trafficking and drug related violence require increases in state budgets for enforcement at the expense of other social needs, and jeopardize foreign investment by creating insecurity (ibid., p. 28).\n\nThe social impacts of illicit drug use and trafficking are also significant. Substance abuse and the breakdown of families and communities are linked together in a downward spiral. Disintegration of the family contributes to illicit drug abuse, and abuse in turn strains families and tends to make them dysfunctional (ibid., p. 29). In producing areas, communities are subject to intimidation and brutality from both the criminal organizations and the police or army; tribal, community and co‑operative rural organizations are broken down under pressure from traffickers and associated terrorist groups (UN Department of Public Information, Drug Trafficking and the World Economy (1990); quoted in M. C. Bassiouni, “Critical Reflections on International and National Control of Drugs” (1990), 18 Denv. J. Int’l L. & Pol’y 311, at p. 327).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-71", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 100–103", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The negative impact of drug abuse on health, including increased mortality and a range of drug‑related health problems, is another significant social cost (Economic and Social Consequences of Drug Abuse and Illicit Trafficking, supra, at pp. 29‑30). The demonstrated links between drug addiction, needle‑sharing, prostitution, AIDS and other diseases create additional worldwide dangers for health (ibid., p. 32).\n\nThe use of drugs has a detrimental impact on education; again this is a vicious circle in which drug use results in impaired performance and problems such as the loss of self‑esteem from lack of educational achievement contribute to drug consumption (ibid., p. 33).\n\nFinally, there is growing evidence of serious detrimental impacts on the environment both from drug cultivation and processing (e.g., the use and dumping of hazardous chemicals), and from efforts to curtail these activities (such as the spraying of herbicides to eradicate illicit cultivation) (ibid., pp. 33‑34). (3) Links to Criminal Activity and Corruption\n\nDrug‑related crime is a serious problem in producer and consumer countries alike. The incidence of criminal activity increases with drug addiction, as users engage in property crimes and prostitution to support their habits. Violent conflicts among trafficking groups significantly increase the incidence of violence in some areas (ibid., p. 35).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-72", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 104–105", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Illicit drug use and trafficking has a two‑fold impact on law enforcement. First, it diverts time, energy and resources away from other responsibilities. Second, especially in the case of a well‑organized industry, there is a risk of police corruption. Criminal activity and funds related to drug trafficking also have a broader corrupting impact on government and civil society. In some countries the money available from the drug trade seriously undermines the democratic process through the purchasing of protection, influence and votes. There are obvious dangers of corruption in the judicial system as well. Further the presence of large amounts of illegitimate funds also has the potential to destabilize national economies, which in turn renders the political system vulnerable and dependent (ibid., p. 36). (4) Threats to International Political and Economic Stability\n\nThe established links between organized crime, terrorist organizations, arms dealing and drug trafficking compound the risks to security in individual countries and in the international community. According to the United Nations International Drug Control Programme, “[i]n situations of armed conflict, illicit drug revenues ‑‑ or the drugs themselves ‑‑ are regularly exchanged for arms” (World Drug Report, supra, at p. 17). In some countries, such as Peru, trafficking organizations have formed alliances with guerrilla groups to ensure supplies of materials for processing (ibid., p. 128). The financial and military power of these organizations threatens to undermine the political and economic stability of numerous countries, and indeed the entire international community.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-73", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 106–107", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The combined effects of the trade in illicit drugs have led one author to conclude that drug profits “do more to corrupt social systems, damage economies and weaken moral and ethical values than the combined effects of all other forms of crime. . . . The corrupting reach into government officials, politicians and the business community further endangers the stability of societies and governmental processes, and ultimately threaten political stability and even world order” (Bassiouni, supra, at pp. 323‑24). C. The United Nations and the Control of Illicit Drugs (1) United Nations Activity in the Area of Drug Control\n\nThe grave concern of the international community relating to the use and trafficking of illicit drugs predated the establishment of the United Nations, and drug control activities have continued since its founding. The consequences of trafficking in opium at the beginning of the century led to cooperative international efforts to control it. The International Opium Convention, 8 L.N.T.S. 187, was adopted in 1912. Since that time, over a dozen multilateral instruments as well as many bilateral agreements and innumerable other documents have been developed by the international community, under the auspices first of the League of Nations and then of the United Nations. Indeed actions aimed at controlling the traffic in drugs were taken upon the founding of the United Nations.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-74", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 108–109", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Recent UN activity in this area demonstrates an ever increasing concern with illicit drug trafficking and its associated ills. There are three major UN bodies that have been established to deal with drug control. The Commission on Narcotic Drugs (“CND”), a commission of the Economic and Social Council established in 1946, is the central policy‑making body within the UN on drug‑related matters. The United Nations International Drug Control Programme is the UN agency responsible for coordinating activities in this area. The International Narcotics Control Board, established in 1968, is responsible for administering treaties relating to the international control of drugs, overseeing their implementation and promoting compliance.\n\nUntil the 1980s, the most important international instruments were the Single Convention on Narcotic Drugs, 1961, 30 March 1961, 520 U.N.T.S. 204, amended by a Protocol in 1972 (Protocol Amending the Single Convention on Narcotic Drugs, 1961, 25 March 1972, 976 U.N.T.S. 3), and the Convention on Psychotropic Substances, 21 February 1971, 1019 U.N.T.S. 175. The Single Convention on Narcotic Drugs, 1961 consolidated most of the previous multilateral treaties on drugs. Both the Single Convention on Narcotic Drugs, 1961 and the Convention on Psychotropic Substances focussed on the supply and movement of drugs, and attempted to establish a network of administrative controls. More than 116 narcotic drugs and 111 psychotropic substances are controlled by these conventions. Canada is a signatory to both conventions (Multilateral Treaties Deposited with the Secretary‑General, United Nations, New York (ST/LEG/SER.E), as available on http://www.un.org/Depts/Treaty on December 4, 1997).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-75", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 110", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "By the 1980s, however, it had become apparent that the seriousness of the problem had continued to increase and that the measures taken up to that time were inadequate: . . . as the power of the drug cartels became more pervasive and their methods increasingly sophisticated, the need for new and more stringent international measures became clear. Within the United Nations, the Commission on Narcotic Drugs became the focus of efforts to formulate and adopt a more comprehensive, long‑range approach to the drug problem at the international level. (D. P. Stewart, “Internationalizing The War on Drugs: The UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances” (1990), 18 Denv. J. Int’l L. & Pol’y 387, at p. 390.) In 1981, an International Drug Abuse Control Strategy and programme of action were adopted (GA Res. 36/168, 16 December 1981), which targeted both use and trafficking. In 1984, the United Nations General Assembly passed a unanimous resolution asking that the CND be requested to begin preparation of a new convention (GA Res. 39/141, 14 December 1984). The CND began work on the draft convention in the following year (Stewart, supra, at p. 390), and this work continued, with the encouragement of the General Assembly, for the next few years (see, e.g., GA Res. 40/120, 13 December 1985).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-76", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 111", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "An International Conference on Drug Abuse and Illicit Trafficking attended by delegates from 138 states took place in Vienna in 1987 (Report of the International Conference on Drug Abuse and Illicit Trafficking, UN Doc. A/CONF.133/12, at p. 97). Two major documents were adopted at the conference: the conference Declaration and the Comprehensive Multidisciplinary Outline of Future Activities in Drug Abuse Control (ibid., pp. 88 and 3). The Outline is a non‑binding set of guidelines to be used by member states and organizations in designing a comprehensive approach to the problems of drug abuse and trafficking (ibid., p. 7). It covers prevention and demand reduction, control of supply, suppression of illicit trafficking, and treatment and rehabilitation. The Declaration expressed concern about the effects of drug abuse and called for universal accession to the Single Convention on Narcotic Drugs, 1961 and the Convention on Psychotropic Substances, and the completion and adoption of the new convention.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-77", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 112", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "By the following year, the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, UN Doc. E/Conf.82/15, 19 December 1988 (“Illicit Traffic Convention”), was in the final stages of negotiation and drafting. A conference for its adoption was held, with the delegations from 106 states participating (Final Act of the United Nations Conference for the Adoption of a Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, UN Doc. E/Conf.82/14, at para. 7). The Illicit Traffic Convention was adopted on December 19, 1988 and was immediately signed by 44 states, including Canada (D. W. Sproule and P. St‑Denis, “The UN Drug Trafficking Convention: An Ambitious Step”, in Canadian Yearbook of International Law 1989, vol. XXVII, 263, at p. 263); it came into force in November 1990. As of December 1997, 88 states have now signed the Illicit Traffic Convention (Multilateral Treaties Deposited with the Secretary‑General, United Nations, New York (ST/LEG/SER.E), as available on http://www.un.org/Depts/Treaty on December 4, 1997).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-78", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 113–114", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Illicit Traffic Convention has been described as “one of the most detailed and far‑reaching instruments ever adopted in the field of international criminal law” (Stewart, supra, at p. 388). Its preamble recognizes “that illicit traffic is an international criminal activity, the suppression of which demands urgent attention and the highest priority”, and the eradication of which “is a collective responsibility of all States” (emphasis added). It includes provisions regarding the establishment of criminal offences for trafficking and related activities, the exercise of jurisdiction, confiscation of drugs, other materials and proceeds, extradition, mutual legal assistance and other forms of cooperation, control of substances, materials and equipment used in illicit manufacture, eradication of cultivation, and various other matters relating to the control of trafficking. It covers the narcotic drugs and psychotropic substances listed under the Single Convention on Narcotic Drugs, 1961 and the Convention on Psychotropic Substances, as well as substances commonly used in the illicit manufacture of these drugs.\n\nUnited Nations concern and activity relating to the control of illicit drug trafficking has continued to intensify throughout the last decade. Various organs and agencies of the United Nations have been addressing the problem of illicit drugs and associated issues such as organized crime, money laundering and terrorism. A special session of the General Assembly to consider the problem of illicit drugs is planned for 8‑10 June 1998 (GA Res. 51/64, 28 January 1997), and a high‑level political declaration has been proposed for that session (Press Release, GA/SHC/3424, 27 October 1997).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-79", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 115–116", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The new UN Programme for Reform identifies drug control, crime prevention and combatting international terrorism as a priority area for the UN in the coming years (Renewing the United Nations: A Programme for Reform, UN Doc. A/51/950, 14 July 1997, at para. 144). The United Nations International Drug Control Programme and the Crime Prevention and Criminal Justice Division (renamed the Centre for International Crime Prevention) are to be reorganized to strengthen the UN’s activities in this area (ibid., paras. 144‑45). The reform programme recognizes that “transnational networks of crime, narcotics, money‑laundering and terrorism” are a threat to government authority, civil society and law and order, and that this is an issue of growing international concern (ibid., para. 143). (2) Statements by the United Nations on Illicit Drug Trafficking\n\nThroughout the 1980s and 1990s, international efforts to combat illicit drug trafficking have been included as an item of the General Assembly agenda in every session, and at each session, the General Assembly has adopted resolutions on the subject. These resolutions are not legally binding upon member states, but they clearly and strongly indicate the views of the United Nations and its members. The resolutions on the control of drug trafficking consistently contain expressions of extreme concern about the problem and of condemnation for those who are responsible for its perpetuation and continued growth.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-80", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 117", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The following excerpts, from a 1986 resolution on the International campaign against traffic in drugs, GA Res. 41/127, 4 December 1986, are typical of the tone and content of these statements: Conscious of the common concern that exists among peoples of the world regarding the devastating effects of drug abuse and illicit trafficking, which jeopardize the stability of democratic institutions and the well‑being of mankind and which therefore constitute a grave threat to the security and an obstacle to the development of many countries, . . . Considering that, despite the efforts made, the situation continues to deteriorate, owing, inter alia, to the growing interrelationship between drug trafficking and transnational criminal organizations that are responsible for much of the drug traffic and abuse of narcotic drugs and psychotropic substances and for the increase in violence, corruption and injury to society, Acknowledging once more that the eradication of this scourge calls for acknowledgement of shared responsibility . . . 1. Condemns unequivocally drug trafficking in all its illicit forms ‑‑ production, processing, marketing and consumption ‑‑ as a criminal activity and requests all States to pledge their political will in a concerted and universal struggle to achieve its complete and final elimination. . . . [Emphasis added.] Subsequent declarations also expressed alarm at the detrimental impact on youth, both in terms of their involvement in production and trafficking, and the increasing numbers of drug addicted children and young people (e.g., GA Res. 43/121, 8 December 1988; GA Res. 44/141, 15 December 1989; GA Res. 46/103, 16 December 1991; GA Res. 49/168, 24 February 1995), and at the increasing connection between drug trafficking and terrorism (e.g., GA Res.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-81", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 117–118", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "44/142, 15 December 1989; GA Res. 45/149, 18 December 1990; GA Res. 46/103, 16 December 1991; GA Res. 47/102, 16 December 1992; GA Res. 48/112, 20 December 1993).\n\nIn 1990, a Political Declaration and Global Programme of Action were adopted at the seventeenth special session of the General Assembly, which was devoted to the control of illicit drug use and trafficking. The Political Declaration states: We, the States Members of the United Nations, Assembled at the seventeenth special session of the General Assembly to consider the question of international co‑operation against illicit production, supply, demand, trafficking and distribution of narcotic drugs and psychotropic substances, Deeply alarmed by the magnitude of the rising trend in the illicit demand, production, supply, trafficking and distribution of narcotic drugs and psychotropic substances, which are a grave and persistent threat to the health and well‑being of mankind, the stability of nations, the political, economic, social and cultural structures of all societies and the lives and dignity of millions of human beings, most especially of young people, . . . Deeply concerned about the violence and corruption generated by the illicit demand, production, trafficking and distribution of narcotic drugs and psychotropic substances and the high human, political, economic and social costs of drug abuse and of the fight against the drug problem, entailing the diversion of scarce resources from other national priorities, which in the case of developing countries includes development activities, . . .", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-82", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 118", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Recognizing the links between drug abuse and a wide range of adverse health consequences, including the transmission of human immunodeficiency virus (HIV) infection and the spread of acquired immunodeficiency syndrome (AIDS), Recognizing also that illicit trafficking in narcotic drugs and psychotropic substances is a criminal activity and that its suppression requires a higher priority and concerted action at the national, regional and international levels by all States, . . . Noting that the large financial profits derived from illicit drug trafficking and related criminal activities enable transnational criminal organizations to penetrate, contaminate and corrupt the structure of Governments, legitimate commercial activities and society at all levels, thereby vitiating economic and social development, distorting the process of law and undermining the foundations of States, . . . Alarmed at the growing link between illicit trafficking in narcotic drugs and terrorist activities, which is aggravated by insufficient control of commerce in arms and by illicit or covert arms transfers, as well as by illegal activities of mercenaries, . . . Agree on the following: 1. We resolve to protect mankind from the scourge of drug abuse and illicit trafficking in narcotic drugs and psychotropic substances; 2. We affirm that the fight against drug abuse and illicit trafficking in narcotic drugs and psychotropic substances should be accorded high priority by Governments and by all relevant regional and international organizations; . . . 8. We condemn the crime of illicit drug trafficking in all its forms and reaffirm our political commitment to concerted international action. . . . [Emphasis added.] (GA Res.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-83", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 118", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "S‑17/2, 23 February 1990, Annex) Most recently, a resolution adopted in January 1998 states that the General Assembly is: Gravely concerned that, despite continued increased efforts by States and relevant international organizations, there is a global expansion of illicit demand for, production of and trafficking in narcotic drugs and psychotropic substances, including synthetic and designer drugs, which threatens the health, safety and well‑being of millions of persons, in particular young people, in all countries, as well as the political and socio‑economic systems and the stability, national security and sovereignty of an increasing number of States, Deeply alarmed by the growing and spreading violence and economic power of criminal organizations and terrorist groups engaged in drug trafficking activities and other criminal activities, such as money laundering and illicit traffic of arms and precursors and essential chemicals, and by the increasing transnational links between them, . . . . . . Fully aware that States, the relevant organizations of the United Nations system and multilateral development banks need to accord a higher priority and political determination to dealing with this scourge, which undermines development, economic and political stability and democratic institutions, and the combat against which entails increasing economic costs for Governments and the irreparable loss of human lives. . . . [Emphasis added.] (GA Res. 52/92, 26 January 1998)", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-84", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 119", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "To traffic in dangerous illicit drugs is to commit a very grievous crime with very serious social consequences in Canada and throughout the world. In light of the grave international consequences it would be reasonable to expect the United Nations to have considered and studied the problem. The foregoing review confirms that those expectations have been met. The studies conducted by the United Nations have confirmed the gravity of the crime and the continuing tragedy of its consequences. These studies and the pronouncements of the United Nations concerning drug trafficking indicate that the crime can indeed be considered to be contrary to the purposes and principles of the United Nations. D. Application to the Case at Bar: Is Illicit Drug Trafficking an Act Contrary to the Purposes and Principles of the United Nations? (1) How Should A Court Or Tribunal Determine What Constitutes An Act Contrary to the Purposes and Principles of the United Nations?", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-85", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 120–121", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "On occasion, the United Nations itself has expressly declared a certain activity to be contrary to its purposes and principles. In those cases, the declaration depending on its legal status may compel a domestic court to find that the act is contrary to the purposes and principles of the United Nations, or at least persuade it to make such a finding. This is the situation which pertains to enforced disappearance, torture and international terrorism. The Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (GA Res. 3452 (XXX), 9 December 1975, Article 2) states that “[a]ny act of torture or other cruel, inhuman or degrading treatment or punishment is an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations. . . .”\n\nThe Declaration on the Protection of All Persons from Enforced Disappearance (GA Res. 47/133, 18 December 1992, Article 1(1)) contains similar language with respect to enforced disappearance. The Declaration on Measures to Eliminate International Terrorism (GA Res. 49/60, 17 February 1995, Annex, Article 2) and the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism (GA Res. 51/210, 16 January 1997, Annex, Article 2) both state that the acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations. These declarations are persuasive evidence that the acts stated to be contrary to the purposes or principles of the United Nations should be treated as such, inter alia, for the purposes of the Refugee Convention.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-86", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 122–123", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "It does not follow, however, that the category of acts contrary to the purposes and principles of the United Nations should be restricted to those expressly declared to be so. A domestic tribunal is entitled, upon considering the relevant material, to find that the phrase includes other types of acts. On this appeal two other categories were put forward as an indication of the kind of acts which should also be considered contrary to the purposes and principles of the United Nations: namely international crimes and “crimes of international concern”. While these categories may be useful guides, they should not, I think, be considered to be conclusive in determining the scope of acts which should be included.\n\nThe category of acts which are agreed to be true international crimes is, at least at the present time, a very limited one. These crimes would be considered acts contrary to the purposes and principles of the United Nations, but I do not think they constitute the only acts contravening the UN’s purposes and principles. On the other hand, the category of “crimes of international concern”, which it is suggested includes those crimes which are the subject of international conventions providing for international cooperation in prosecuting offenders, is a very broad one. (See, e.g., M. C. Bassiouni, International Criminal Law, vol. 1, Crimes (1986), at pp. 135‑36.) He would include some activity which it would be inappropriate to label as “contrary to the purposes and principles of the United Nations”. Actions which do come within this description will have serious consequences. It follows that in the context of defining the scope of exclusions to the Refugee Convention, they should not be too broadly defined.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-87", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 124–125", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Similarly, it cannot be that every initiative of the United Nations is so central to its purposes and principles that any act which violates or undermines those initiatives is “contrary to the purposes and principles of the United Nations”. It is true that one of the purposes of the United Nations as expressed in its Charter is “[t]o achieve international cooperation in solving international problems” (Charter of the United Nations, Can. T.S. 1945 No. 7, Article 1(3)). However in light of the expansive, and expanding scope of the areas in which agencies of the United Nations are active, it would not be appropriate to use this wide range of activity to define the exclusion at issue here.\n\nNevertheless, there are some matters which are the subject of such grave concern and such intense and continuing activity that it may be inferred that they are fundamentally connected to the goals of the UN. It is not merely the extent of the concern and activity that will indicate which initiatives are central to the purposes and principles of the UN, but also the nature of the problem and its relationship to the purposes and principles as they are expressed in the Charter. Some problems have been recognized by the international community as being so serious and of such a nature that they pose a threat to the entire international community and the principles of its social order. Conduct which directly or significantly contributes to these problems or which violates agreed principles or obligations with respect to them should, in appropriate cases, be considered as contrary to the purposes and principles of the United Nations. In my view trafficking to a significant extent in a dangerous drug such as heroin should be included in this category of conduct.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-88", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 126", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "While I agree with Bastarache J. that serious or systematic violation of human rights would be conduct that is contrary to the purposes and principles of the United Nations, with respect, I do not see that it is the only conduct that should be considered in interpreting Article 1F(c) of the Refugee Convention. The promotion of respect for human rights is one of the fundamental purposes of the United Nations. There are, however, other purposes and principles which can be violated by the actions of an individual or a state. It may be useful to review the purposes and principles of the United Nations set out in the Charter: Article 1 The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self‑determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-89", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 126", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles: 1. The Organization is based on the principle of the sovereign equality of all its Members. 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-90", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 126–128", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "These principles are reiterated and developed in the Declaration on Principles of International Law Concerning Friendly Relations and Co‑operation Among States in Accordance with the Charter of the United Nations (GA Res. 2625 (XXV), 24 October 1970, Annex).\n\nThe determination of what constitutes an act contrary to these purposes and principles need not be limited to the consideration of one purpose, the protection of human rights, notwithstanding the fact that it is important and that the Refugee Convention is a human rights instrument. Although the purpose of the instrument will be taken into account in interpreting its provisions, I do not see that in this case it must restrict the content of the exclusion so as to limit it to conduct relating directly to human rights. All of the purposes and principles should be considered. Furthermore, some types of conduct may indirectly but significantly contribute to the violation of human rights; I would include participation in large scale illicit drug trafficking in that category of conduct.\n\nThe Refugee Convention should be interpreted so as to provide the greatest protection of human rights. Yet, it cannot be the case that the interpretation of an exclusion must be forever restricted. As international law develops, the content of a phrase such as “acts contrary to the purposes and principles of the United Nations” must be capable of development. The expansion of the exclusion set out in Article 1F(c) of the Refugee Convention should not be undertaken lightly, but where there is compelling evidence suggesting that it should be interpreted in a certain way, a court is not precluded from adopting that interpretation.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-91", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 129–130", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "International law is developing continuously. Courts should recognize that the guidance provided by interpretive aids such as the travaux préparatoires and subsequent practice must be considered in the light of the current state of the law and international understandings. The travaux préparatoires should be taken into account, yet this does not mean that courts are restricted to a precise interpretation of that material. Rather, consideration should be given to the underlying principles and concerns that they express with the aim of giving them a contemporary meaning. Similarly, with regard to state practice, some consistency should be maintained with the line of interpretation revealed by the practice of state parties, but that interpretation must be adjusted to take into account evolving ideas and principles in international law. The interpretation of international legal instruments is a dynamic process which must take into account the contemporary conditions. To put it another way, the interpretation must respond to the contemporary context. (2) Can a Private Individual Be Guilty of Acts Contrary to the Purposes and Principles of the United Nations?\n\nThe position, that illicit drug trafficking activities may constitute acts contrary to the purposes and principles of the United Nations, assumes that private individuals can commit such acts. Although those involved in trafficking will sometimes hold public office or other positions of power, it is unlikely that they would be engaging in illicit trafficking in their capacity as state actors. More often the traffickers will be private individuals with no direct connection to state authority.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-92", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 131–132", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "To hold that a private person who is not acting on behalf of or as agent of a state, could commit an act that is contrary to the purposes and principles of an international organization of nation states is, admittedly, contrary to the traditional position. Traditionally it was thought that the purposes and principles of the United Nations, like international law generally, are addressed only to states, and can be violated only by state actors. This is the position reflected in the portions of the travaux préparatoires and the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status referred to by the appellant.\n\nHowever, the status of private individuals in international law has evolved in recent years. It is now generally accepted that an individual acting in his or her private capacity can commit acts which constitute violations of international law. Although the scope of international criminal responsibility for private individuals is limited, it does exist. Some of the acts covered by Article 1F(a) can be committed by individuals who are not acting as officials or agents of a state. It follows that Article 1F(c), could also apply to individuals. For example the actions of a kidnapping or murdering terrorist; the illicit sale of arms by an arms dealer; or the trafficking in heroin in a large scale which might fund the acts of the terrorist or arms dealer could all contravene the aims and principles of the United Nations.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-93", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 133–135", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Furthermore, some of the acts which have been explicitly recognized as contrary to the purposes and principles of the United Nations are also recognized to be committed, at least in some cases, by private individuals. The Declaration on Measures to Eliminate International Terrorism implies that terrorist acts may be committed with or without official state involvement. This is apparent from the Preamble that refers to “acts of international terrorism, including those in which States are directly or indirectly involved” (emphasis added).\n\nThe position adopted by my colleague, Bastarache J., that “acts contrary to the purposes and principles of the United Nations” should be interpreted, for the purposes of the Refugee Convention, as meaning serious violations of human rights or persecution, also implies that private individuals could be guilty of these acts. Indeed this Court held in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, that persecution could, in some cases, include acts by private individuals without any state involvement (at pp. 713‑17). (3) Is Trafficking in Illicit Drugs an Act Contrary to the Purposes and Principles of the United Nations?\n\nIn my opinion significant trafficking in a dangerous illicit drug can constitute an act which is contrary to the purposes and principles of the United Nations. It would thus form the basis of exclusion from refugee status pursuant to Article 1F(c) of the Refugee Convention. Although I accept the result arrived at by the courts below and suggested by the respondent, I arrive at that result by somewhat different reasoning.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-94", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 136–137", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "At the outset it is important to set out certain propositions which do not form the basis for my position. I do not proceed on the basis that refugee status is a privilege or exceptional entitlement and that therefore any doubt in interpretation may be resolved against the potential claimant. To the extent that this was the basis underlying the reasons of Strayer J.A. in the Court of Appeal, I cannot with respect agree with that view. The right to claim refugee status constitutes an important right, and any exclusions from that right must be interpreted in accordance with accepted principles.\n\nNext, the rationale for including illicit drug trafficking in the 1F(c) exclusion is not that Canada should be able to exclude from the refugee determination process persons who might be considered “undesirable” or who have, without more, committed crimes in Canada. These cases must be dealt with, if at all, according to the provisions for refoulement as they are incorporated into the Immigration Act, R.S.C., 1985, c. I‑2.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-95", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 138–139", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is also not, as the respondent suggested, a question of helping in some way in the “war against drugs”. Canada’s obligations do not require it to deny refugee status to those involved in the drug trade. Rather, the interpretation of the exclusion to include drug trafficking reflects the harsh reality that this activity is recognized, both legally and practically, as an activity that not only is a domestic criminal offence, but occasions very serious and significant harm in the international community. It is because it gives rise to such grave consequences that it can and should form the basis of an exclusion. This conclusion arises from the consideration and application of the same rationale that prompted the international community to determine that certain persons should not, because of the nature of their actions, be permitted to make the claim to refugee status that they would otherwise be entitled to make. (4) Illicit Drug Trafficking as an International Crime\n\nTrafficking in illicit drugs is clearly a “crime of international concern”. The Illicit Traffic Convention explicitly recognizes that “illicit traffic is an international criminal activity, the suppression of which demands urgent attention and the highest priority” (Preamble). It requires all states who are parties to cooperate in the prevention and prosecution of trafficking offences. General Assembly resolutions have also referred to illicit drug trafficking as a criminal activity, which requires international cooperation to suppress (e.g., GA Res. 39/141, 14 December 1984, Annex; GA Res. 41/127, 4 December 1986).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-96", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 140", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The legal status of illicit trafficking as an “international crime” is less clear, in large part because there is little agreement on what constitutes a true international crime (J. F. Murphy, “International Crimes” in C. C. Joyner, ed., The United Nations and International Law (1997), 362, at pp. 362‑63). According to one author, “[i]n light of [the Illicit Traffic Convention] and the other earlier multilateral efforts a good argument can be made that international drug trafficking is a crime under customary international law” (ibid., pp. 369‑70). However, it does not yet seem to be established that universal jurisdiction exists for drug trafficking crimes. The latest version of the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind (Report of the International Law Commission on the work of its forty‑eighth session, UN Doc. A/51/10, chapter 2) does not contain provisions on narcotics trafficking although they had been included in an earlier draft (Draft Articles on the Draft Code of Crimes Against the Peace and Security of Mankind, UN Doc. A/46/405, 11 September 1991, at p. 25). The commentary to the recent draft, however, indicates that this omission is not to be construed as precluding further discussion and perhaps the eventual inclusion of those provisions (Report of the International Law Commission on the work of its forty‑eighth session, supra, at para. 40).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-97", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 141–142", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "All of these elements may be considered in determining whether trafficking in illicit drugs is an act contrary to the purposes and principles of the United Nations. However, I do not think that the categorization of an act as an international crime or crime of international concern is determinative of the question. Rather it is necessary to consider the question in the context of all the relevant factors. (5) Nature and Gravity of the Harm Caused by Illicit Drug Trafficking\n\nThe concern of the appellant and the intervener on this appeal was to establish some rational basis for identifying those “crimes of international concern” or activities contrary to some United Nations programme or initiative that could properly be called “acts contrary to the purposes and principles of the United Nations”. In my view, the additional factor which distinguishes illicit drug trafficking from some other “crimes of international concern” or United Nations initiatives is the nature and gravity of the harm to people in countries around the world and to the international community as a whole that results from this activity. An analysis of the nature and severity of the harm provides a rational basis for drawing the necessary distinctions.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-98", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 143", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The insidious and widespread effects of drug use and trafficking have already been described. Beyond any doubt the harm caused by the illicit traffic in drugs is of the utmost severity. This illicit traffic takes a dreadful toll on the lives of individuals, families and communities. It destabilizes and retards the development of whole nations and regions. Clearly the grave concern that has been consistently expressed by the international community is well merited. Nor can there be any doubt that the severity of the problem and the international concern for its consequences is increasing.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-99", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 144", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "Drug trafficking has, throughout this century, been an international enterprise and hence an international problem. However, the ever increasing scale of the traffic, the apparent efficiency of organization and sophistication, the vast sums of money involved and the increasing links with transnational organized crime and terrorist organizations constitute a threat which is increasingly serious in both its nature and extent. Illicit drug trafficking now threatens peace and security at a national and international level. It affects the sovereignty of some states, the right of self‑determination and democratic government, economic, social and political stability and the enjoyment of human rights. Many of the purposes and principles expressed in the UN Charter, are undermined, directly or indirectly, by the international trade in illicit drugs: for example, international peace and security (Article 1(1)), self‑determination (Article 1(2)), solving economic, social, cultural or humanitarian problems (Article 1(3)), protection of human rights (Article 1(3)), sovereignty (Article 2(1)) and refraining from the use of force (Article 2(4)). It is on this basis that I find that at least some individuals who participate in and contribute to this activity must be considered to be committing acts contrary to the purposes and principles of the United Nations. (6) Explicit Statements Regarding Illicit Drug Trafficking by the United Nations", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-100", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 145", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The statements on this subject by the international community, including the relevant conventions and General Assembly resolutions, reflect an acute awareness of the nature and gravity of the problem, and a severe condemnation of the activities that give rise to the problem. It was contended by the intervener Canadian Council for Refugees that the silence of the United Nations on illicit drug trafficking, in contrast to, for example, torture and international terrorism, indicated that trafficking should not be considered contrary to its purposes and principles. Yet, in reality, the United Nations has been anything but silent with respect to its concerns about the international traffic in illicit drugs and its effects.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-101", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 146", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "It is true that, the United Nations has never specifically declared that drug trafficking is “contrary to the purposes and principles of the United Nations”. However it has clearly and frequently recognized and denounced the evils of drug trafficking. See for example: Trafficking in narcotic drugs or psychotropic substances is a grave international crime against humanity. (Draft Convention against Traffic in Narcotic Drugs and Psychotropic Substances and Related Activities, GA Res. 39/141, 14 December 1984, Annex, Article 2) [The General Assembly] [c]ondemns unequivocally drug trafficking in all its illicit forms. . . . (GA Res. 41/127, 4 December 1986, Article 1) We condemn the crime of illicit drug trafficking in all its forms. . . . (Political Declaration, GA Res. S‑17/2, 23 February 1990, Annex, Article 8) [The General Assembly] [s]trongly condemns the crime of drug trafficking in all its forms. . . . (GA Res. 45/149, 18 December 1990, Part I, Article 1; GA Res. 46/103, 16 December 1991, Part I, Article 2) [The General Assembly] [r]eiterates its condemnation of the crime of drug trafficking in all its forms. . . . (GA Res. 47/102, 16 December 1992, Part I, Article 2; GA Res. 48/112, 20 December 1993, Part II, Article 1)", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-102", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 147", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "There are also many statements reflecting an awareness that trafficking threatens essential aspects of the purposes and principles of the United Nations. Drug trafficking has been recognized as a threat to: health and well‑being (e.g., GA Res. 36/132, 14 December 1981; GA Res. 39/141, 14 December 1984, Annex; GA Res. 40/122, 13 December 1985; GA Res. 41/127, 4 December 1986; GA Res. 44/142, 15 December 1989; GA Res. S‑17/2, 23 February 1990, Annex; GA Res. 49/168, 24 February 1995; GA Res. 51/64, 28 January 1997; GA Res. 52/92, 26 January 1998); political, economic, social and cultural structures (e.g., GA Res. 42/113, 7 December 1987; GA Res. 43/122, 8 December 1988; GA Res. 44/141, 15 December 1989; GA Res. 44/142, 15 December 1989; GA Res. S‑17/2, 23 February 1990, Annex; GA Res. 45/149, 18 December 1990; GA Res. 49/168, 24 February 1995; GA Res. 51/64, 28 January 1997; GA Res. 52/92, 26 January 1998); development (e.g., GA Res. 38/122, 16 December 1983; GA Res. 39/141, 14 December 1984, Annex; GA Res. 40/122, 13 December 1985; GA Res. 41/127, 4 December 1986; GA Res. S‑17/2, 23 February 1990, Annex; GA Res. 49/168, 24 February 1995; GA Res. 52/92, 26 January 1998); political and economic stability (e.g., GA Res. 40/122, 13 December 1985; GA Res. 44/142, 15 December 1989; GA Res. 45/149, 18 December 1990; GA Res. 49/168, 24 February 1995; GA Res. 51/64, 28 January 1997; GA Res. 52/92, 26 January 1998); national security (e.g., GA Res. 36/132, 14 December 1981; GA Res. 38/122, 16 December 1983; GA Res. 40/122, 13 December 1985; GA Res. 41/127, 4 December 1986; GA Res. 42/113, 7 December 1987; GA Res. 43/122, 8 December 1988; GA Res. 44/142, 15 December 1989; GA Res. 45/149, 18 December 1990; GA Res. 49/168, 24 February 1995; GA Res. 51/64, 28 January 1997; GA Res.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-103", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 147–148", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "52/92, 26 January 1998); sovereignty (e.g., GA Res. 39/141, 14 December 1984, Annex; GA Res. 40/121, 13 December 1985; GA Res. 44/142, 15 December 1989; GA Res. 45/149, 18 December 1990; GA Res. 49/168, 24 February 1995; GA Res. 51/64, 28 January 1997; GA Res. 52/92, 26 January 1998); human rights (e.g., GA Res. 44/39, 4 December 1989; GA Res. 49/168, 24 February 1995); and democratic institutions (e.g., GA Res. 40/121, 13 December 1985; GA Res. 41/127, 4 December 1986; GA Res. 42/113, 7 December 1987; GA Res. 43/122, 8 December 1988; GA Res. 44/141, 15 December 1989; GA Res. 49/168, 24 February 1995; GA Res. 51/64, 28 January 1997).\n\nAs a basis for comparison, the Article of the Declaration on Measures to Eliminate International Terrorism that declares the acts, methods and practices of terrorism to be contrary to the purposes and principles of the United Nations states that these “may pose a threat to international peace and security, jeopardize friendly relations among States, hinder international cooperation and aim at the destruction of human rights, fundamental freedoms and the democratic bases of society” (Article 2). Since the United Nations has explicitly recognized that the traffic in illicit drugs may pose a similar threat, I think it is reasonable to infer that this activity is also contrary to the purposes and principles of the United Nations.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-104", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 149–150", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "This conclusion is strengthened by the recognition that illicit drug trafficking is, to an increasingly significant extent, linked to other acts which are contrary to the purposes and principles of the United Nations. That organization has recognized that trafficking in illicit drugs is directly and indirectly responsible for grave human rights violations. Its growing links to international terrorism clearly indicate that drug money is used to support terrorist activity. The international community has recently recognized this in the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism by stating that: 2. The States Members of the United Nations reaffirm that acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations; they declare that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations. . . . [Emphasis added.]\n\nThe statements of the United Nations and the international community lead inexorably to the conclusion that those engaged in trafficking in illicit drugs are responsible, directly or indirectly, for harms that are so widespread and so severe that they undermine the very purposes and principles upon which the United Nations is based. It follows that their actions must be considered “acts contrary to the purposes and principles of the United Nations” and thus come within the exclusion set out in Article 1F(c) of the Refugee Convention.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-105", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 151", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "There remains the problem of distinguishing which acts within the broad category of illicit drug trafficking constitute acts contrary to the purposes and principles of the United Nations. The UN General Assembly has condemned “drug trafficking in all its illicit forms”, including production, processing, marketing and consumption (e.g., GA Res. 41/127, 4 December 1986). However, I believe it is necessary to draw some distinctions based on the type and scale of activities. It is those actually engaged in trafficking who reap most of the profits, cause the greatest harm and therefore bear the greatest responsibility for perpetuating the illicit trade. Those who are merely consumers are often victims themselves and do not bear the same responsibility. The Illicit Traffic Convention recognizes this distinction by treating production, processing, distribution and sale differently from possession, purchase or cultivation for personal consumption for the purposes of offences and sanctions (Article 3).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-106", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 152", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Illicit Traffic Convention also provides some guidance with respect to distinguishing particularly serious trafficking offences. Article 3(5) outlines a number of “factual circumstances which make the commission of the offences established in accordance with paragraph 1 of this article particularly serious”: (a) The involvement in the offence of an organized criminal group to which the offender belongs; (b) The involvement of the offender in other international organized criminal activities; (c) The involvement of the offender in other illegal activities facilitated by commission of the offence; (d) The use of violence or arms by the offender; (e) The fact that the offender holds a public office and that the offence is connected with the office in question; (f) The victimization or use of minors; (g) The fact that the offence is committed in a penal institution or in an educational institution or social service facility or in their immediate vicinity or in other places to which school children and students resort for educational, sports and social activities; (h) Prior conviction, particularly for similar offences, whether foreign or domestic, to the extent permitted under the domestic law of a Party.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-107", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 153", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "To this list of factors to be considered, I would add the nature and quantity of the drugs involved. The International Law Commission’s draft code that included illicit traffic in narcotics as an international crime (Draft Articles on the Draft Code of Crimes Against the Peace and Security of Mankind, Article 25(1)) referred to trafficking on a large scale; of course it will be a question of interpretation in each case whether the trafficking at issue is “on a large scale”. The commentary of the International Law Commission on this article distinguishes between “isolated or individual activities of small dealers” and “large‑scale, organized operations” (Report of the International Law Commission on the work of its forty-second session, UN Doc. A/45/10, in the Yearbook of the International Law Commission 1990, vol. II, Part Two, 1, at p. 30).", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-108", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "para 154", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "In this case, the appellant was a participant in an organized group trafficking in heroin. Heroin is thought to be the most harmful of illicit narcotic drugs (World Drug Report, supra). Obviously its use and trafficking are a matter of particularly grave concern. At the time the arrests were made, the group with which the appellant was associated held heroin with a street value of approximately $10 million. This was clearly a major operation, and the appellant was an important participant in that operation. These facts, in my opinion, clearly indicate the seriousness of the appellant’s crime. Therefore, while not every domestic narcotics offence will provide a basis for exclusion under Article 1F(c) of the Refugee Convention, this appellant should, as a result of his actions, be excluded. He trafficked on a large scale in the most debilitating of drugs. He abused his status in Canada and jeopardized the lives, health and welfare of many. There is no reason why Canadians should be burdened with his continued presence. He has demonstrated his danger to Canadian society and indeed to the international community. He should not remain in Canada. (7) Remedies Available Prior to Deportation", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-109", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 155–156", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "During the appeal, concern was expressed that the appellant or another individual excluded by Article 1F could face a risk of torture, execution or other serious human rights violation upon being deported to his country of origin. It was said that no effective remedy was available to prevent his deportation should such a risk exist. It was suggested that the absence of a remedy, would give rise to a serious injustice and would involve Canada in a breach of its legal obligations under various international instruments. In particular, Canada would be failing to meet its obligations under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36, not to expel or return a person to a state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture (Article 3(1)) and similar obligations in the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (E/RES/1989/65, 24 May 1989, Article 5) and the United Nations Declaration on the Protection of All Persons from Enforced Disappearance, Article 8.\n\nAlthough these issues are a valid cause for serious concern, they do not directly arise in this appeal. It was suggested to the Court that these concerns could be dealt with by adopting a “balancing” approach to the exclusion clauses in Article 1F. Such an approach would not be appropriate in light of the nature and wording of that article.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1627-110", + "doc_type": "caselaw", + "act_code": "[1998] 1 SCR 982", + "act_short": "Pushpanathan", + "act_name": "Pushpanathan v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982", + "marginal_note": "paras 157–158", + "heading": "Exclusion from refugee protection under Article 1F(c) for acts contrary to the purposes of the United Nations", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the context of the present appeal, it is neither necessary nor desirable to examine in detail the remedies that are presently available to an individual facing deportation nor to suggest the particular form that such a remedy should take. However, it would be unthinkable if there were not a fair hearing before an impartial arbiter to determine whether there are “substantial grounds for believing” that the individual to be deported would face a risk of torture, arbitrary execution, disappearance or other such serious violation of human rights. In light of the grave consequences of deportation in such a case, there must be an opportunity for a hearing before the individual is deported, and the hearing must comply with all of the principles of natural justice. As well, the individual in question ought to be entitled to have the decision reviewed to ensure that it did indeed comply with those principles. These protections should be available whether or not the individual is excluded from claiming status as a refugee, to avoid unacceptably harsh consequences arising from the exclusion. III. Conclusion\n\nIn the result I would dismiss the appeal. Appeal allowed, Cory and Major JJ. dissenting.", + "current_to": "1998-06-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1627/index.do" + }, + { + "id": "scc-1023-1", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 1", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689\n\nPatrick Francis Ward Appellant\n\nv.\n\nThe Attorney General of Canada Respondent\n\nand\n\nUnited Nations High Commissioner for\n\nRefugees, Immigration and Refugee Board and\n\nCanadian Council for Refugees Interveners\n\nIndexed as: Canada (Attorney General) v. Ward\n\nFile No.: 21937.\n\n1992: March 25; 1993: June 30.\n\nPresent: La Forest, L'Heureux‑Dubé, Gonthier, Stevenson* and Iacobucci JJ.\n\non appeal from the federal court of appeal\n\nImmigration ‑‑ Refugee status ‑‑ \"Particular social group\" ‑‑ Political opinion ‑‑ \"Well‑founded fear of persecution\" necessary to establishment of claim to Convention refugee status ‑‑ Claimant a former member of Irish terrorist organization sentenced to death by organization for complicity in assisting escape of hostages ‑‑ Claimant citizen of Ireland and of United Kingdom ‑‑ Whether state complicity requirement for persecution ‑‑ Whether terrorist organization a \"particular social group\" ‑‑ Whether dissention from politico‑military organization basis for persecution for political opinion ‑‑ Whether s. 15 of Charter applicable to definition of Convention refugee ‑‑ Burden of proof of want of protection of each country of nationality ‑‑ Canadian Charter of Rights and Freedoms, s. 15 ‑‑ Immigration Act, 1976, S.C. 1976‑77, c. 52, ss.2(1), 4(2.1), 19(1)(c), (d), (e), (f), (g), (2), 46.04(1)(c).", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-2", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 2", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Appellant was a resident of Northern Ireland. Motivated by a perceived need to \"take a stand\" in order to protect his family, mainly from the IRA, he voluntarily joined the INLA, a para‑military terrorist group dedicated to the political union of Ulster and the Irish Republic. Appellant, who had been detailed to guard innocent hostages, secured their escape when he learned that they were to be executed. This action was motivated by his conscience.\n\nThe police eventually let slip to an INLA member that one of their own had assisted the escape. The INLA, who had suspected appellant, confined and tortured him and sentenced him to death following a court‑martial by a kangaroo court. Appellant escaped from the INLA, sought police protection and was charged for his part in the hostage incident. The INLA, in a pre‑emptive move to prevent appellant's providing evidence to the police about INLA members and their activities, took his wife and children hostage.\n\nAppellant pleaded guilty to the offence of forcible confinement and was sentenced to three years in jail. He did not give evidence against the INLA and never admitted publicly to having released the hostages. Towards the end of his prison sentence, appellant sought the assistance of the prison chaplain for protection from INLA members. The chaplain, with the assistance of police, obtained a Republic of Ireland passport for appellant and airline tickets to Canada.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-3", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 3", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Appellant arrived in Toronto in December 1985 and sought admission to Canada as a visitor. He became the subject of an inquiry in May, 1986, and claimed Convention refugee status citing a fear of persecution because of his membership in a particular social group (the INLA). The Minister of Employment and Immigration determined that appellant was not a Convention refugee and, as a result, appellant filed an application for redetermination of his claim before the Immigration Appeal Board. The Board allowed the redetermination and found appellant to be a Convention refugee. The Federal Court of Appeal granted the Attorney General of Canada's application under s. 28 of the Federal Court Act to set aside the decision and referred the matter back to the Board for reconsideration.\n\nAt issue before this Court were: (1) whether the element of state complicity is required to establish a refugee claim and the nature of the \"unwillingness\" or \"inability\" of a claimant to seek the protection of his or her home state; (2) the meaning of \"particular social group\"; (3) the nature of persecution for political opinion and whether desertion from a politico‑military organization for reasons of conscience may properly ground a claim based on that ground; (4) whether s. 15 of the Charter was applicable; and (5) in cases of multiple nationality, whether the claimant must establish want of protection in all states of citizenship.\n\nHeld: The appeal should be allowed.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-4", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 4", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "International refugee law was formulated to serve as a back‑up to the protection owed a national by his or her state. It was meant to come into play only in situations where that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.\n\n\"Persecution\" includes situations where the state is not in strictness an accomplice to the persecution but is simply unable to protect its citizens. The dichotomy between \"unable\" and \"unwilling\" has become somewhat blurred. The inquiry as to whether a claimant meets the \"Convention refugee\" definition must focus on whether there is a \"well‑founded fear\", which the claimant must first establish, and all that follows must be \"by reason of\" that fear. Two categories, both requiring the claimant to be outside his or her state of nationality by reason of that fear, exist. The first requires that the claimant be unable to avail him‑ or herself of that state's protection. It originally related only to stateless persons, but can now include those refused passports or other protections by their state of nationality. The second requires that the claimant be unwilling to avail him‑ or herself of his or her state's protection by reason of that fear. Neither category of the \"Convention refugee\" definition, however, requires that the state have been involved in the persecution.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-5", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 5", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The test as to whether a state is unable to protect a national is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well‑founded in an objective sense. The claimant need not literally approach the state unless it is objectively unreasonable for him or her not to have sought the protection of the home authorities. The Board, if the claimant's fear has been established, is entitled to presume that persecution will be likely and that the fear is well‑founded if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. The persecution must be real ‑‑ the presumption cannot be built on fictional events ‑‑ but the well‑foundedness of the fears can be established through the use of such a presumption.\n\nThe presumption was of some importance to the Board in this case. It found that the appellant was a credible witness and therefore accepted that he had a legitimate fear of persecution. Since Ireland's inability to protect was established through evidence that state agents had admitted their ineffectiveness, the Board was then able to presume the well‑foundedness of appellant's fears.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-6", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 6", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The claimant must provide clear and convincing confirmation of a state's inability to protect absent an admission by the national's state of its inability to protect that national. Except in situations of complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting a claimant. This presumption, while it increases the burden on the claimant, does not render illusory Canada's provision of a haven for refugees. It reinforces the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant.\n\nIn distilling the contents of the head of \"particular social group\", account should be taken of the general underlying themes of the defence of human rights and anti‑discrimination that form the basis for the international refugee protection initiative. A good working rule for the meaning of \"particular social group\" provides that this basis of persecution consists of three categories: (1) groups defined by an innate, unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-7", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 7", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Exclusions on the basis of criminality have been carefully drafted in the Immigration Act to avoid the admission of claimants who may pose a threat to the Canadian government or to the lives or property of the residents of Canada. These provisions specifically give the Minister of Employment and Immigration enough flexibility to reassess the desirability of permitting entry to a claimant with a past criminal record, where the Minister is convinced that rehabilitation has occurred. This demonstrates that Parliament has not opted to treat a criminal past as a reason to be estopped from obtaining refugee status. The scope of the term \"particular social group\" accordingly did not need to be interpreted narrowly to accommodate morality and criminality concerns. Such a blanket exclusion is more appropriately to be avoided in the face of an explicit, comprehensive structure for the assessment of these potentially inadmissible claimants.\n\nAppellant did not meet the definition of \"Convention refugee\" with respect to his fear of persecution at the hands of the INLA upon his return to Northern Ireland. The group of INLA members is not a \"particular social group\". Its membership is neither characterized by an innate characteristic nor is it an unchangeable historical fact. Its objective of obtaining specific political goals by any means, including violence, cannot be said to be so fundamental to the human dignity of its members that it constitutes a \"particular social group\". In any event, appellant's fear was not based on his membership. Rather, he felt threatened because of what he did as an individual. His membership in the INLA placed him in the circumstances that led to his fear, but the fear itself was based on his action, not on his affiliation.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-8", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 8", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "A claimant is not required to identify the reasons for the persecution. The examiner must decide whether the Convention definition is met; usually there will be more than one applicable ground.\n\nPolitical opinion can generally be interpreted to be any opinion on any matter in which the machinery of state, government, and policy may be engaged. The political opinion at issue need not have been expressed outright. Often the claimant is not even given the opportunity to articulate his or her beliefs; often they are imputed to the claimant from his or her actions. The political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. Similar considerations apply to other bases of persecution.\n\nAppellant's fear of being killed by the INLA, should he return to Northern Ireland, stemmed initially from the group's threat of executing the death sentence imposed by its court‑martial. The act for which appellant was so punished was his assistance in the escape of the hostages he was guarding. From this act, a political opinion related to the proper limits to means used for the achievement of political change can be imputed. To appellant, who believed that the killing of innocent people to achieve political change is unacceptable, setting the hostages free was the only option that accorded with his conscience. The persecution appellant fears stemmed from his political opinion as manifested by this act.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-9", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 9", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Given that the relevant aspects of the majority decision were found to be incorrect for other reasons, recourse to s. 15 of the Charter with respect to \"particular social group\" and state complicity was unnecessary.\n\nAppellant conceded dual nationality ‑‑ Irish and British. The burden of proof, including a showing of well‑founded fear of persecution in all countries of which the claimant is a national, lies with appellant and not the Minister.\n\nThe Board must investigate whether the claimant is unable or unwilling to avail him‑ or herself of the protection of each and every country of nationality. Any home state protection is a claimant's sole option when available since international refugee protection is to serve as \"surrogate\" shelter coming into play only upon failure of national support. The inability of a state of nationality to protect can be established where the claimant has actually approached the state and been denied protection. Where, as in the case of appellant, the second state has not actually been approached by the claimant, that state should be presumed capable of protecting its nationals. An underlying premise of this presumption is that citizenship carries with it certain basic consequences, such as the right to gain entry to the country at any time. Denial of admittance to the home territory can amount to a refusal of protection. Here, evidence, albeit not expert opinion, was led to establish that British legislation enabled the British Government to prohibit a national from being in, or entering, Great Britain, if the national had been connected with terrorism with regard to Northern Ireland. The applicability of this presumption and its rebuttal depended on the particular circumstances of this case and was to be determined by the Board.\n\nCases Cited", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-10", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 10", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Considered: Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129; Surujpal v. Minister of Employment and Immigration (1985), 60 N.R. 73; Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605; McMullen v. Immigration and Naturalization Service, 658 F.2d 1312 (1981); Cheung v. Minister of Employment and Immigration, [1993] F.C.J. No. 309 (Q.L.), Appeal No. A‑785‑91; Mayers v. Canada (Minister of Employment and Immigration) (1992), 97 D.L.R. (4th) 729; Matter of Acosta, Interim Decision 2986, 1985 WL 56042 (B.I.A.); referred to: Artiga Turcios v. I.N.S., 829 F.2d 720 (1987); Arteaga v. I.N.S., 836 F.2d 1227 (1988); Estrada‑Posadas v. I.N.S., 924 F.2d 916 (1991); Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171; Astudillo v. Minister of Employment and Immigration (1979), 31 N.R. 121; Arrechea Gonzalez v. Minister of Employment and Immigration (1991), F.C.A. A‑899‑90; Ahmed v. Minister of Employment and Immigration (1990), F.C.A. A‑215‑90; Lai v. Canada (Minister of Employment and Immigration) (1989), Imm. L.R. 245; Osorio Cruz v. Minister of Employment and Immigration (1988), I.A.B.D. M88‑20043X; Nalliah v. Minister of Employment and Immigration (1987), I.A.B.D. M84‑1642; Escoto v. Minister of Employment and Immigration (1987), I.A.B.D. T87‑9024X; Incirciyan v. Minister of Employment and Immigration (1987), I.A.B.D. M87‑1541X/M87‑1248; Balareso v. Minister of Employment and Immigration (1985), I.A.B.D. M83‑1542; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; I.N.S. v. Elias‑Zacarias, 112 S.Ct. 812 (1992).\n\nStatutes and Regulations Cited\n\nBritish Nationality Act 1981, 1981 (U.K.), c. 61.\n\nCanadian Charter of Rights and Freedoms , s. 15 .\n\nFederal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-11", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 11", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Immigration Act, R.S.C., 1985, c. I‑2, ss. 2(1) [as am. by S.C. 1988, c. 35, s. 1 (R.S.C., 1985, c. 28 (4th Supp.), ss. 1(2), 34)], 19.\n\nImmigration Act, 1976, S.C. 1976‑77, c. 52, s. 2(1) [as am. by S.C. 1988, c. 35, s. 1], 4(2.1) [as ad. by Miscellaneous Statute Law Amendment Act, 1981, S.C. 1980‑81‑82‑83, c. 47, s. 3], 19(1)(c), (d), (e), (f), (g), (2) [as am. by S.C. ibid., ss. 23, 53], 46.04(1)(c) [as ad. by S.C. 1988, c. 35, s. 14].\n\nImmigration Regulations, 1978, SOR/78‑172, s. 19(4)(j).\n\nInterpretation Act , R.S.C., 1985, c. I‑21 , s. 33(2) .\n\nPrevention of Terrorism (Temporary Provisions) Act 1984, 1984 (U.K.), c. 8, later replaced by Prevention of Terrorism (Temporary Provisions) Act 1989, 1989 (U.K.), c. 4, ss. 4, 5.\n\nAuthors Cited\n\nCompton, Daniel. \"Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar ‑‑ Sanchez‑Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986)\" (1987), 62 Wash. L. Rev. 913.\n\nConvention Relating to the Status of Refugees (Geneva, July 28, 1951), Can. T.S. 1969, No. 6.\n\nFoighel, Isi. \"The Legal Status of the Boat‑People\", 48 Nordisk Tidsskrift for International Relations 217.\n\nGoodwin‑Gill, Guy S. The Refugee in International Law. Oxford: Clarendon Press, 1983.\n\nGrahl‑Madsen, Atle. The Status of Refugees in International Law. (n.p.) Netherlands: A. W. Sijthoff‑Leyden, 1966.\n\nGraves, Maureen. \"From Definition to Exploration: Social Groups and Political Asylum Eligibility\" (1989), 26 San Diego L. Rev. 739.\n\nGross, Douglas. \"The Right of Asylum Under United States Law\" (1980), 80 Colum. L. Rev. 1125.\n\nHathaway, James C. The Law of Refugee Status. Toronto: Butterworths, 1991.\n\nHelton, Arthur C. \"Persecution on Account of Membership in a Social Group As a Basis for Refugee Status\" (1983), 15 Colum. Hum. Rts. L. Rev. 39.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-12", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 12", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Hyndman, Patricia. \"The 1951 Convention Definition of Refugee: An Appraisal with Particular Reference to the Case of Sri Lankan Tamil Applicants\" (1987), 9 Hum. Rts. Q. 49.\n\nPlender, Richard. \"Admission of Refugees: Draft Convention on Territorial Asylum\" (1977-78), 15 San Diego L. Rev. 45.\n\nTakkenberg, Alex and Christopher C. Tahbaz. The Collected Travaux Préparatoires of the 1951 Geneva Convention relating to the Status of Refugees. Vol. 1, Early History and the Ad Hoc Committee on Statelessness and Related Problems 16 January ‑ 16 February 1950 Lake Success, New York and Vol. 3, The Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons 2 ‑ 25 July 1951 Geneva, Switserland [sic]. Amsterdam: Dutch Refugee Council, under the auspices of the European Legal Network on Asylum, 1990.\n\nUnited Nations. Economic and Social Council. Ad Hoc Committee on Statelessness and Related Problems. First Session. Summary record of the Fifth Meeting, Lake Success, New York, 18 January 1950. Mr. Henkin (United States Delegate). UN Doc. E/AC.32/SR.5.\n\nUnited Nations. Economic and Social Council. Ad Hoc Committee on Statelessness and Related Problems. Report of the Ad Hoc Committee on Statelessness and Related Problems. Lake Success, New York, 16 January to 16 February 1950. UN Doc. E/1618 and Corr. 1 ‑ E/AC.32/5.\n\nUnited Nations. Economic and Social Council. Ad Hoc Committee on Statelessness and Related Problems. United Kingdom. Revised draft proposal for Article 1. UN Doc. E/AC.32/L.2/Rev. 1.\n\nUnited Nations. Economic and Social Council. Ad Hoc Committee on Statelessness and Related Problems. United States of America: Memorandum on the Definition Article of the Preliminary Draft Convention Relating to the Status of Refugees (and Stateless Persons). UN Doc. E/AC.32/L.4.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-13", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 13", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "United Nations. General Assembly. Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. Summary Record of the Third Meeting held at the Palais des Nations, Geneva, on Tuesday, 3 July 1951. Mr. Petren (Swedish Delegate). UN Doc A/CONF.2/SR.3.\n\nUnited Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status. Geneva: 1988.\n\nvan der Veen, Job. \"Does Persecution by Fellow‑Citizens in Certain Regions of a State Fall Within the Definition of `Persecution' in the Convention Relating to the Status of Refugees of 1951? Some Comments Based on Dutch Judicial Decisions\" (1980), 11 Netherlands Y.B. Intl. L. 167.\n\nAPPEAL from a judgment of the Federal Court of Appeal, [1990] 2 F.C. 667, 67 D.L.R. (4th) 1, 10 Imm. L.R. (2d) 189, 108 N.R. 60, allowing an application to review and set aside a judgment of the Immigration Appeal Board (1988), 9 Imm. L.R. (2d) 48, finding appellant to be a convention refugee. Appeal allowed.\n\nPeter A. Rekai, M. Christina F. Kurata, LeVern L. Robertson and Constance Nakatsu, for the appellant.\n\nRoslyn J. Levine and Nanette Rosen, for the respondent.\n\nRonald B. Shacter and Phyllis Gordon, for the intervener Canadian Council for Refugees.\n\nBrian A. Crane, Q.C., and Gerald Stobo, for the intervener Immigration and Refugee Board.\n\nWritten submission only for the intervener United Nations High Commissioner for Refugees.\n\n//La Forest J.//\n\nThe judgment of the Court was delivered by\n\nLa Forest J. -- This case raises, for the first time in this Court, several fundamental issues respecting the definition of a \"Convention refugee\" in s. 2(1) of the Immigration Act, 1976, S.C. 1976-77, c. 52, which reads:\n\n2. . . .", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-14", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 14", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "\"Convention refugee\" means any person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,\n\n(a) is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to avail himself of the protection of that country, or\n\n(b) not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country . . .\n\nThis definition was revised somewhat by S.C. 1988, c. 35, s. 1 (R.S.C., 1985, c. 28 (4th Supp.), s. 1(2)), to its current version in the Immigration Act, R.S.C., 1985, c. I-2:\n\n2. (1) . . .\n\n\"Convention refugee\" means any person who\n\n(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,\n\n(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or\n\n(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and\n\n(b) has not ceased to be a Convention refugee by virtue of subsection (2),\n\nbut does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-15", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 15", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The questions raised are the extent to which a claimant's \"well-founded fear of persecution\" must emanate from the state from which the claimant flees, as well as the scope of the enumerated grounds of persecution, particularly \"membership in a particular social group\" and \"political opinion\".\n\nFacts\n\nThe appellant, Patrick Francis Ward, was born in Northern Ireland in 1955. He joined the Irish National Liberation Army (INLA) in 1983 as a volunteer. Ward described the INLA as a ruthless para-military organization more violent than the Irish Republican Army (IRA), with a military-like hierarchy and strict discipline. Before joining as a volunteer, he had loose connections with the INLA in that he had sympathies for their cause. Indeed, Ward had been convicted of the offences of possession of firearms, conspiracy to convey things unlawfully into Northern Ireland, and contributing to acts of terrorism. He testified that with the constant turmoil in Northern Ireland, people were forced to \"take a stand\" to protect their loved ones and that his joining the INLA stemmed in part from a desire to protect himself and his family, mainly from the IRA.\n\nWard's first task as a member of the INLA was to assist in guarding two of the organization's hostages at a farm house in the Republic of Ireland. One day after Ward's guard duties commenced, the INLA ordered the hostages executed. He wanted no part in the execution of these innocent hostages, and underwent what he described as a \"predicament of moral conscience\". As a result, he resolved to release the hostages and succeeded in doing so without revealing himself to the INLA.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-16", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 16", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Some time later, the police let slip to an INLA member that one of their own had assisted the hostages in their escape. The INLA suspected Ward, and he was confined and tortured. Although he never admitted his role in the escape, Ward was court-martialled by a kangaroo court and sentenced to death. However, he managed to escape and sought police protection. The police in turn charged him for his part in the hostage incident, based on finding his fingerprints at the farm where the hostages had been held.\n\nWard expressed concern to the police about his wife and children. The police checked on them, only to discover that they had been taken hostage by the INLA in a pre-emptive move to prevent the claimant from \"turning supergrass\", the colloquial term for providing evidence to the police about INLA members and their activities.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-17", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 17", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Ward pleaded guilty to the offence of forcible confinement and was sentenced to three years in jail. He did not \"turn supergrass\"; nor did he ever admit publicly to having released the hostages. Towards the end of his prison sentence, Ward sought the assistance of the prison chaplain for protection from INLA members. The chaplain, with the assistance of police, obtained a Republic of Ireland passport for Ward and airline tickets to Canada. Ward arrived in Toronto in December 1985 and sought admission to Canada as a visitor. He became the subject of an inquiry in May 1986 and claimed Convention refugee status. His claim was based on a fear of persecution because of his membership in a particular social group, namely the INLA. The Minister of Employment and Immigration determined that Ward was not a Convention refugee and, as a result, he filed an application for redetermination of his claim before the Immigration Appeal Board. The Board allowed the redetermination and found Ward to be a Convention refugee.\n\nThe respondent, the Attorney General of Canada, brought an application under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to review and set aside the decision of the Board. This application was granted by the Federal Court of Appeal, which set aside the decision and referred the matter back to the Board for reconsideration.\n\nJudgments\n\nImmigration Appeal Board (1988), 9 Imm. L.R. (2d) 48 (K. J. Arkin for the Board)", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-18", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 18", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Board approached the case on the basis that two issues fell to be decided pertaining to the definition of a \"Convention refugee\": whether the definition contemplates a claimant whose country of nationality is unable to protect him adequately, and whether the definition requires state complicity in the persecution of the claimant. On the latter question, the Board found the authorities inconclusive but ruled that the definition does not necessarily contemplate state complicity in the persecution of a claimant, and, at p. 59, that \"the state's being unable to offer effective protection is sufficient\".\n\nTurning to the first issue, the Board, at p. 59, found the requirement that the claimant be unable or unwilling to avail himself of the protection of his home state was \"inextricably intertwined\" with the state's inability to offer effective protection. Moreover, the Board reasoned as follows, at p. 59, on the link between persecution and protection:\n\nFear of persecution and lack of protection are also interrelated elements. Persecuted persons clearly do not enjoy the protection of their country of origin and evidence of the lack of protection may create a presumption as to the likelihood of persecution and to the well-foundedness of any fear.\n\nAs such, the Board concluded as follows, at p. 60:", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-19", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 19", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "In view of the basic nature of the test imposed by the definition of Convention refugee, i.e., whether or not the applicant has a well-founded fear of persecution for one of the enumerated reasons, it is reasonable, even necessary, to consider the state's ability to provide adequate protection to the applicant: to the extent that the state is unable to protect the individual, the applicant will have good reason to fear persecution. The reason for the state's inability to provide adequate protection from persecution seems irrelevant. The question in any such case then becomes whether or not there exists \"adequate\" protection. [Emphasis in original.]\n\nOn the key question of the state's ability to protect Ward, the Board, at p. 54, found Ward to be a \"completely credible witness\". It accepted that his life would be in danger if he were required to return to Northern Ireland because of the death sentence passed by the INLA and the threat he posed to that organization's security. Although Irish police had offered Ward protection, such protection would not be effective.\n\nThe Board turned its mind to the question of Ward's nationality, a question of immediate relevance given the proviso in the statutory definition that a refugee claimant be unable or unwilling to avail himself of the protection of \"the country of [his] nationality\". On this point, the Board found as follows, at p. 54:", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-20", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 20", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Clearly, the evidence established that the claimant is a citizen of Ireland, both Northern Ireland and the Republic of Ireland. However, no evidence was presented to the Board to establish that the claimant is also a citizen of the United Kingdom. In response to questions put to him in cross-examination, the claimant testified that as a citizen of Northern Ireland, he is entitled to live in Britain unless he is excluded under the Protection of Terrorism Actof the United Kingdom, whereunder anyone with terrorist connections can be refused entry to British mainland. While the respondent questioned the reasonableness of the claimant's fear of the INLA were he to return to Britain, the respondent did not establish either the claimant's right to live in Britain or the claimant's right to citizenship in the United Kingdom. Accordingly, the Board finds the claimant's country of nationality to be Northern Ireland and the Republic of Ireland.\n\nHowever, in a footnote to its reasons, at p. 55, the Board went on to note the following:\n\nHad the Board concluded that the claimant was also a national of the United Kingdom, the Board would have made a finding that the claimant's life would be in danger from the INLA if he was returned to the United Kingdom.\n\nIn the result, the Board determined that Ward was a Convention refugee.\n\nFederal Court of Appeal, [1990] 2 F.C. 667", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-21", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 21", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "On appeal to the Federal Court of Appeal, the Attorney General advanced three basic arguments: the Board failed to consider whether the INLA was a \"particular social group\" within the terms of s. 2(1) of the Act; the Board erred in finding that there was no requirement of state complicity in \"persecution\"; and it erred in finding that Ward's only countries of nationality were Northern Ireland and the Republic of Ireland. Urie J.A., writing for himself and Marceau J.A., found that the Board had erred on the first and third of these points. MacGuigan J.A. held that the Board had erred only with respect to the third issue.\n\nOn the first question, Urie J.A. reasoned that persecution for reasons of social group membership can occur only when the group's activities are perceived to be a possible danger to the government. He stated, at p. 677:\n\nThe INLA activities are clearly contrary to the interests of the government of Northern Ireland and of the United Kingdom. But mere membership does not, of itself, substantiate a claim to refugee status. A fortiori, membership does not substantiate a claim to refugee status based upon a fear arising from acts committed by a member of the group contrary to the interests of the group, which group interests are themselves contrary to the well-being of the state. [Emphasis in original.]", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-22", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 22", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "In other words, if the claimant's fear arose from within the group itself and not the state, it cannot provide the basis of a claim of persecution. Urie J.A. was not persuaded that Ward, who feared persecution from the organization to which he belonged, was entitled to the protection afforded bona fide refugees who meet all the elements in the definition of Convention refugee. The fact that he was a member who had acted contrary to the interests of the INLA did not bring him within the definition. Urie J.A. remarked, at p. 678, that \"[i]f such a view were to be taken anyone who dissents on anything could be said to be a member of a particular social group\", a proposition he considered absurd. He rejected the argument that any group engaged in political activity would fall under the definition of a social group. Such an approach, he reasoned, would render the \"political opinion\" segment of the \"Convention refugee\" definition redundant.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-23", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 23", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "In dissent, MacGuigan J.A. opined that there could be no serious argument that the INLA is not literally a particular social group since its members (at p. 689) \"are united in a stable association with common purposes\". He did not agree that \"social group\" must be deemed to exclude terrorists. However, even conceding this point, he noted that Ward had abandoned the group because of its terrorism and that the social group here at issue included members and former members of the INLA. The group's general commitment to terrorism did not, in his view, mean that Ward, as an individual, was unable to terminate his adherence to it. For MacGuigan J.A., the \"true gravamen\" of Ward's fear of persecution sprang from his membership in the organization, rather than from his misbehaviour as a member, since the INLA's motivation in sentencing him to death was, at least in part, to prevent future disclosures about the activities of the group. He further noted that a determination that Ward was a Convention refugee would not automatically entitle him to remain in Canada, as he would still be subject to the exceptions in s. 19 of the Act relating to previous convictions, espionage or subversion.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-24", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 24", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "On the second issue, the need for state complicity in persecution, Urie J.A. appears to have decided that such state complicity is a prerequisite for \"persecution\" under the Act. In support of this, he turned to the requirements of the definition that a claimant be \"unable\" or \"unwilling\" to seek the assistance of his home state. Urie J.A. found that being \"unable\" to avail oneself of the protection of his national state meant, at p. 680, \"quite literally that the claimant cannot, because of his physical inability to do so, even seek out the protection of his state. These imply circumstances over which he has no control and is not a concept applicable in facts of this case.\" On the \"unwillingness\" branch of the test, Urie J.A. made the following remarks, at p. 680:", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-25", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 25", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "If a claimant is \"unwilling\" to avail himself of the protection of his country of nationality, it is implicit from that fact that his unwillingness stems from his belief that the State and its authorities, cannot protect him from those he fears will persecute him. That inability may arise because the State and its authorities are either themselves the direct perpetrators of the feared acts of persecution, assist actively those who do them or simply turn a blind eye to the activities which the claimant fears. While there may well be other manifestations of it, these possibilities clearly demonstrate that for the claimant to be unwilling to avail himself of the protection of his country of nationality, to provide the foundation for a claim to be a refugee he must establish that the State cannot protect him from the persecution he fears arising, in this case, from his former membership in the INLA, i.e., he must establish that what he fears is in fact persecution as that term is statutorily and jurisprudentially understood. On that basis the involvement of the State is sine qua non where unwillingness to avail himself of the protection is the fact. [Emphasis in original.]\n\nUrie J.A. found that the Board had confused the determination of persecution and ineffective protection. He also rejected the Board's finding that evidence of the lack of protection may create a presumption regarding the likelihood of persecution and the well-foundedness of any fear.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-26", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 26", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "MacGuigan J.A. rejected the contention that the Board erred in its definition of persecution. In his view, the wording of s. 2(1)(a) of the Act does not necessarily import state complicity. While agreeing that \"is unable\" probably means literally unable, he found no reason to limit the sense of \"is unwilling\" to a single meaning. He stated, at pp. 697-98:\n\nIn sum, I believe that taking into account (1) the literal text of the statute, (2) the absence of any decisive Canadian precedents, and (3) the weight of international authority, the Board's interpretation of the statutory definition is the preferable one. No doubt this construction will make eligible for admission to Canada claimants from strife-torn countries whose problems arise, not from their nominal governments, but from various warring factions, but I cannot think that this is contrary to \"Canada's international legal obligations with respect to refugees and . . . its humanitarian tradition with respect to the displaced and the persecuted\".\n\nIn his view, then, persecution need not emanate from the state.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-27", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 27", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The third argument of the Attorney General, we saw, was that the Board erred in holding that no evidence had been presented to establish that Ward was a citizen of the United Kingdom, as well as of Northern Ireland and the Republic of Ireland. Ward replied that while Northern Ireland was part of the United Kingdom, he did not have an unrestricted right to live anywhere in the United Kingdom as a result of the Prevention of Terrorism (Temporary Provisions) Act 1984, 1984 (U.K.), c. 8, under which he could be refused admission because of his terrorist activities. On this question Urie J.A. cited, at p. 685, the second paragraph of Art. 1(A)(2) of the Convention, which, while \"not binding upon us since it has not been incorporated into Canadian law, . . . persuasive as forming a logical construction of the Convention refugee definition\". Urie J.A. held, at p. 683, that \"if it is found that he has more than one country of nationality the claimant is obliged to establish his unwillingness to avail himself of the protection of each of his countries of nationality before he can be considered to be a Convention refugee\" (emphasis in original). In this respect, Urie J.A. remarked, at p. 685:\n\n. . . I am of the opinion that a refugee claimant must establish that he is unable or unwilling to avail himself of all of his countries of nationality. It is the nationality of the claimant which is of prime importance. The right to live in his country of nationality becomes relevant only in the discharge of the onus on him of proving that he is unable to avail himself of the country of which he has established he is a national. [Emphasis in original.]", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-28", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 28", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Not only did the Board fail to address the issue, he stated, at p. 685: \"it compounded the error because it perceived that it was the Crown which had the onus of establishing `either the claimant's right to live in Britain or the claimant's right to citizenship in the United Kingdom'.\" Urie J.A. noted that s. 8(1) of the Act states that the burden of proof for a person seeking to enter Canada rests on that person. On this point, MacGuigan J.A. was largely in agreement with the majority. All three judges were of the view that the issue of whether Ward could avail himself of the protection of the United Kingdom should be returned to the Board for determination.\n\nIssues\n\nI propose to approach the issues raised by the parties in the following order:\n\nA. Persecution and State Complicity\n\n(a) Is the element of state complicity, either through direct persecution, collusion with the persecuting agents, or wilful blindness to the actions of the persecuting agents, a requisite element in establishing a refugee claimant's \"unwillingness\" to avail him- or herself of the protection of his or her country of nationality?\n\n(b) Is a claimant considered \"unable\" to avail him- or herself of the protection of the state only in those circumstances where he or she is physically unable to seek out this protection?\n\nB. Membership in a Particular Social Group\n\n(a) What is the meaning of the phrase, \"particular social group\", as used in the definition of Convention refugee in s. 2(1) of the Immigration Act, 1976.\n\n(b) Is there any basis for the exclusion of some kinds of social groups as a result of their objectives or the unlawful methods employed by their members?\n\nC. Political Opinion", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-29", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 29", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Whether desertion or dissension from a politico-military organization for reasons of conscience may properly ground a claim to be a Convention refugee on the basis of a well-founded fear of persecution for reasons of political opinion.\n\nD. Section 15 of the Canadian Charter of Rights and Freedoms\n\nWhether the interpretation of \"Convention refugee\" by the majority of the Federal Court of Appeal is consistent with s. 15 of the Charter .\n\nE. Double Nationality\n\nWhere evidence establishes that a refugee claimant has more than one country of nationality, does the claimant have the burden of establishing that he or she is unwilling or unable to avail him- or herself of the protection of each country of nationality, pursuant to the definition of \"Convention refugee\"?\n\nAnalysis\n\nAt the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. For this reason, James Hathaway refers to the refugee scheme as \"surrogate or substitute protection\", activated only upon failure of national protection; see The Law of Refugee Status (1991), at p. 135. With this in mind, I shall now turn to the particular elements of the definition of \"Convention refugee\" that we are called upon to interpret.\n\nA. Persecution and State Complicity", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-30", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 30", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The persecution alleged by the appellant emanates from non-state actors, the INLA; the Government of Ireland is in no way involved in it. This case, then, raises the question whether state involvement is a prerequisite to \"persecution\" under the definition of \"Convention refugee\" in the Act. The precise issues are phrased differently by the parties, but can be summarized in the following fashion. First, is there a requirement that \"persecution\" emanate from the state? Second, does it matter whether the claim is based on the \"unable\" or \"unwilling\" branch of the definition? In my view, the answer to both these questions is no. A third issue is the test for establishing a \"well-founded fear of persecution\" under the Act.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-31", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 31", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The respondent Attorney General, while arguing that state complicity is a prerequisite to persecution, conceded that a state's inability to protect its citizens from persecution is sufficient state complicity to satisfy the Convention definition. She also conceded that the Government of Ireland was unable to protect the appellant. As such, the respondent confined her argument to the fact that the appellant did not establish before the tribunal that the United Kingdom was similarly unable to protect him. On the second issue, she maintained that when a claimant asserts that he or she is \"unwilling\" to seek the protection of his or her home state, he or she must also establish that the reason for such unwillingness is state complicity (which, it is conceded, can be extended to the state's inability to protect). The respondent also contended that there is no such prerequisite for state complicity when the refugee asserts that he or she is \"unable\" to seek the protection of his or her home state. The appellant argued that the definition of persecution must be \"neutral\", with no requirement for state complicity. Further, he also accepted that there is a distinction between \"unable\" and \"unwilling\", but that a claimant's unwillingness can relate back to persecution neutrally defined. The unwillingness, when combined with the inability of the claimant's state to protect him or her from the persecution, will ground a refugee claim.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-32", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 32", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "When one considers the arguments of the appellant and respondent, it becomes apparent that their positions are in reality almost congruent, differing only as to the point at which the inability of the state to protect becomes a necessary ingredient of the definition. The real difference between the parties is on the question of the appellant's unwillingness to return to Great Britain as well as Ireland, a matter that is discussed later as a separate issue.\n\nThe intervener Council for Refugees agrees that the Convention definition does require a claimant to demonstrate an inability by his or her state to protect from non-governmental acts of persecution. It contends that this is inherent in the definition rather than a question arising from the term \"unwilling\". It argues that \"unable\" and \"unwilling\" refer only to the refugee claimant's situation outside the country, vis-à-vis the consular officials of his or her home country.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-33", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 33", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The United Nations High Commissioner for Refugees intervened to argue that the distinction between \"unable\" and \"unwilling\" is irrelevant to this appeal, that there is no requirement for state complicity in the definition, and that the proper focus should be on whether the claimant, because of the state's inability to protect, is \"unable\" or \"unwilling\" to seek the protection of the authorities in his or her home state. The High Commissioner also endorses the position of the Board that the absence of protection may create a sufficient evidentiary basis for a presumption of a well-founded fear by the claimant. For its part, the Board intervened to argue against any state complicity requirement, maintaining instead that the interpretation of the \"Convention refugee\" definition should be flexible enough to allow the Board to respond on a case by case basis, given the variety of conditions in the contemporary world that give rise to refugee movements.\n\nIn sum, the parties, including the respondent, appear to be unanimous in concluding that the court below was wrong to suggest that the claimant's fear must emanate from the state. As well, there is substantial agreement that a state's inability to protect is an integral component of the notion of a Convention refugee, although the parties differ as to the point in the analysis at which such component is injected into the definition. I find that the consensus reached by the parties is substantially correct. As will be apparent, the majority of the court below would appear to be isolated in its views on state complicity. The majority placed undue emphasis on the distinction between \"unwilling\" and \"unable\" in this case.\n\nIt is perhaps useful to begin by returning to the text in question:\n\n2. (1) . . .", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-34", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 34", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "\"Convention refugee\" means any person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,\n\n(a) is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to avail himself of the protection of that country, or\n\n(b) not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country . . . .\n\nThe section appears to focus the inquiry on whether there is a \"well-founded fear\". This is the first point the claimant must establish. All that follows must be \"by reason of\" that fear. The first category requires the claimant to be outside the country of nationality by reason of that fear and unable to avail him- or herself of its protection. The second requires that the claimant be both outside the country of nationality and unwilling to avail him- or herself of its protection, by reason of that fear. Thus, regardless of the category under which the claimant falls, the focus is on establishing whether the fear is \"well-founded\". It is at this stage that the state's inability to protect should be considered. The test is in part objective; if a state is able to protect the claimant, then his or her fear is not, objectively speaking, well-founded. Beyond this point, I see nothing in the text that requires the state to be complicit in, or be the source of, the persecution in question.\n\nState Complicity", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-35", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 35", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "My conclusion that state complicity in persecution is not a pre-requisite to a valid refugee claim is reinforced by an examination of the history of the provision, the prevailing authorities, and academic commentary. On the first point, the parties argue that there is no evidence in the drafting history, the Travaux préparatoires, suggesting that persecution was linked to state action. The draft proposed by the United States delegate mentions only the omission of \"person[s] who leave. . . or ha[ve] left [their] country of nationality or of former habitual residence for reasons of purely personal convenience\" from the definition of \"Convention refugee\"; see UN doc. E/AC.32/L.4 (January 18, 1950), paragraph B., at p. 3. The revised draft proposed by the United Kingdom did not qualify the word \"persecution\" in any way, though it did make reference to state authorities in requiring that the claimant \"does not wish to return to that country for good and sufficient reason or is not allowed by the authorities of that country to return there\"; see UN doc. E/AC.32/L.2/Rev. 1 (January 19, 1950). The omission of a reference to state action does not tell us much, however. The question was apparently never discussed, and the text does not reveal that any link to state action is required.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-36", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 36", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "While the drafting history of the Convention may not go far in justifying the exclusion of state complicity from the interpretation of \"Convention refugee\", other sources provide more convincing support. A much-cited guide on this question is paragraph 65 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (\"UNHCR Handbook\"). While not formally binding on signatory states, the Handbook has been endorsed by the states which are members of the Executive Committee of the UNHCR, including Canada, and has been relied upon by the courts of signatory states. Paragraph 65 of the UNHCR Handbook reads:\n\n65. Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular, but where sizeable fractions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection. [Emphasis added.]\n\nThe position reflected in the UNHCR Handbook, therefore, is that acts by private citizens, when combined with state inability to protect, constitute \"persecution\".", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-37", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 37", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The absence of a state complicity requirement has also been endorsed by academics; see Job van der Veen, \"Does Persecution by Fellow-Citizens in Certain Regions of a State Fall Within the Definition of `Persecution' in the Convention Relating to the Status of Refugees of 1951? Some Comments Based on Dutch Judicial Decisions\" (1980), 11 Netherlands Y.B. Intl. L. 167, at p. 172; J. Hathaway, supra, at p. 127; Guy S. Goodwin-Gill, The Refugee in International Law (1983), at p. 42; Patricia Hyndman, \"The 1951 Convention Definition of Refugee: An Appraisal with Particular Reference to the Case of Sri Lankan Tamil Applicants\" (1987), 9 Hum. Rts. Q. 49, at p. 67; Douglas Gross, \"The Right of Asylum Under United States Law\" (1980), 80 Colum. L. Rev. 1125, at p. 1139; Atle Grahl-Madsen, The Status of Refugees in International Law (1966), at p. 191.\n\nCanadian decisions reflect the growing consensus that state complicity is not necessary. Two recent cases in the Federal Court of Appeal should be noted. First, in Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129, the court seems to suggest that a state's inability to protect is a sub-set of state complicity. The case involved a refugee claimant from Sri Lanka, who was persecuted by other citizens because of his religious convictions. The police were largely indifferent to this persecution. Heald J.A., writing for the majority, found that persecution need not be at the hands of state agents. As for \"unwillingness\", he found that the police indifference justified the claimant's reluctance to seek their protection. Stone J.A. concurred, stating at p. 135:", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-38", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 38", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Obviously, an individual cannot be considered a \"Convention refugee\" only because he has suffered in his homeland from the outrageous behaviour of his fellow citizens. To my mind, in order to satisfy the definition the persecution complained of must have been committed or been condoned by the state itself and consist either of conduct directed by the state toward the individual or in it knowingly tolerating the behaviour of private citizens, or refusing or being unable to protect the individual from such behaviour.\n\nAs I understand him, Stone J.A. argues that there must be state complicity, but that concept is broadly defined to include a state's inability to protect its citizen from private persecution.\n\nThe facts of the second case, Surujpal v. Minister of Employment and Immigration (1985), 60 N.R. 73, are somewhat similar. There the claimants claimed to have been persecuted by non-state agents because they were members of the opposition. They sought assistance from the police, and were refused. In an oral judgment, MacGuigan J.A. stressed the \"police complicity\" in the persecution. The majority in the present case seized upon this phrase as evidence that the proper test is state involvement in the persecution. However, MacGuigan J.A. observed that his statement in Surujpal was made in the context of the facts before him, and he appears to suggest that he was not attempting to elucidate a test, but was simply describing the conduct in that case. For him \"state complicity\" also appears to be sufficiently broad to encompass the state's inability to protect.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-39", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 39", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "This approach is confirmed by the court's recent judgment in Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605, where Décary J.A. bases his reasons on the inability of the state to protect. In doing so, Décary J.A. endorsed the position articulated in paragraph 65 of the UNHCR Handbook. I shall canvass this decision in more detail later.\n\nThe jurisprudence in the United States, which is also a party to the Convention, also supports the interpretation that \"a well-founded fear of persecution\" includes the actions of non-governmental persecutors where the state cannot or will not protect the claimant from those actions. In McMullen v. Immigration and Naturalization Service, 658 F.2d 1312 (9th Cir. 1981), at p. 1315, the Court of Appeal interpreted \"likelihood of persecution\" in the context of deciding whether a deserter from the Provisional IRA was deportable. The court found the concept to include \"[p]ersecution by the government or by a group which the government is unable to control\". This principle was reiterated in Artiga Turcios v. I.N.S., 829 F.2d 720 (9th Cir. 1987), at p. 723; Arteaga v. I.N.S., 836 F.2d 1227 (9th Cir. 1988), at p. 1231; and Estrada-Posadas v. I.N.S., 924 F.2d 916 (9th Cir. 1991), at p. 919.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-40", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 40", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The international community was meant to be a forum of second resort for the persecuted, a \"surrogate\", approachable upon failure of local protection. The rationale upon which international refugee law rests is not simply the need to give shelter to those persecuted by the state, but, more widely, to provide refuge to those whose home state cannot or does not afford them protection from persecution. The former is, of course, comprised in the latter, but the drafters of the Convention had the latter, wider purpose in mind. The state's inability to protect the individual from persecution founded on one of the enumerated grounds constitutes failure of local protection.\n\nI, therefore, conclude that persecution under the Convention includes situations where the state is not in strictness an accomplice to the persecution, but is simply unable to protect its citizens.\n\nUnable/Unwilling\n\nI now turn to the second question. I would agree with the court below that \"unable\" and \"unwilling\" have different meanings, which are fairly apparent on their face. One can say that \"unable\" means physically or literally unable, and that \"unwilling\" simply means that protection from the state is not wanted for some reason, though not impossible. This would, at first sight, seem to be a clear distinction, but as we shall see it has become somewhat blurred.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-41", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 41", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "There is some evidence from the Travaux préparatoires on the development of the distinction between the two concepts. The Report of the First Ad Hoc Committee on Statelessness and Related Problems, February 17, 1950 (U.N. Doc. E/1618 and Corr. 1), contained a draft Convention which included a definition of \"refugee\" that was conceptually similar to the current definition. However, the draft version linked \"unwilling\" with claimants who were entitled to seek the protection of their state, whereas \"unable\" was used in connection with stateless individuals. The Committee commented as follows (at p. 415 of the Travaux préparatoires):\n\nThe Committee agreed that for the purposes of this sub-paragraph . . . and therefore for the draft convention as a whole, \"unable\" refers primarily to stateless refugees, but includes also refugees possessing a nationality who are refused passports or other protection by their own government. \"Unwilling\" refers to refugees who refuse to accept the protection of the government of their nationality.\n\nThis has generally been taken as creating a distinction between refugees with a nationality and those who are stateless; see Goodwin-Gill, supra, at p. 25, n. 23. But when the definition was revised to its current form, \"unable\" was used in connection with both nationals and stateless persons. The Board argues that this revision demonstrates that the term \"unable\" can apply to those with a nationality, and that the distinction between \"unable\" and \"unwilling\" has become blurred. Indeed, this argument is supported by the commentary in the UNHCR Handbook, paragraphs 98-100:", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-42", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 42", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "98. Being unable to avail himself of such protection implies circumstances that are beyond the will of the person concerned. There may, for example, be a state of war, civil war or other grave disturbance, which prevents the country of nationality from extending protection or makes such protection ineffective. Protection by the country of nationality may also have been denied to the applicant. Such denial of protection may confirm or strengthen the applicant's fear of persecution, and may indeed be an element of persecution.\n\n99. What constitutes a refusal of protection must be determined according to the circumstances of the case. If it appears that the applicant has been denied services (e.g., refusal of a national passport or extension of its validity, or denial of admittance to the home territory) normally accorded to his co-nationals, this may constitute a refusal of protection within the definition.\n\n100. The term unwilling refers to refugees who refuse to accept the protection of the Government of the country of their nationality. It is qualified by the phrase \"owing to such fear\". Where a person is willing to avail himself of the protection of his home country, such willingness would normally be incompatible with a claim that he is outside that country \"owing to well-founded fear of persecution\". Whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee. [Emphasis in original.]", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-43", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 43", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "This would appear to be an entirely reasonable reading of the current definition. With respect to \"unable\", it would appear that physical or literal impossibility is one means of triggering the definition, but it is not the only way. Thus ineffective state protection is encompassed within the concept of \"unable\" and \"unwilling\", and I am left with the conclusion that the appellant here could have pursued his claim under either category. As such, the distinctions made in the court below were really of no great importance for the purposes of this case.\n\nThe majority in the court below, although somewhat unclear on the point, appeared to suggest that \"unable\" requires no state complicity, but that \"unwilling\" does. This dichotomy is not, in my view, supported by text of the section or the relevant authorities. As MacGuigan J.A. noted in dissent, the distinction begs the real question of what state complicity means. As we have seen, all parties agree at a minimum that state complicity encompasses an inability to protect. Thus, even if the Court of Appeal's dichotomy were supportable, it would not preclude the appellant's refugee claim.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-44", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 44", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Court of Appeal again considered the dichotomy in Zalzali v. Canada (Minister of Employment and Immigration), supra. That case involved a Lebanese national claiming fear of persecution from one of the various warring militias in that country. His persecutors were thus not agents of the state. Nonetheless, the Court of Appeal ruled that he fell within the definition of a \"refugee\". The court there accepted the dichotomy between \"unable\" and \"unwilling\" as used in its judgment in the present case and concluded that state complicity was a sine qua non of persecution only under the latter term. The court further found that the claimant was \"unable\" to seek the protection of the Lebanese government, as that government had quite literally ceased to exist during Lebanon's civil war.\n\nDécary J.A., writing for the court, concluded at p. 611 that there can be persecution within the meaning of the Act where there is no form of guilt, complicity or participation by the state. His conclusions are largely stated in the context of the \"unable\" branch of the definition, in deference to its judgment in the present case. However, there are hints in his reasons that he would be willing to apply the same analysis to the \"unwilling\" branch of the section. He notes that Court of Appeal's reasons in the present case should be applied \"with the utmost caution\", and his conclusions on state complicity are stated initially without reference to the dichotomy between \"unwilling\" and \"unable\". Indeed, much of his reasoning is not grounded in the dichotomy.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-45", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 45", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Décary J.A. draws on a variety of sources to conclude that persecution can arise from one's fellow nationals, when the government is unable to protect the victim against what they are doing. I am persuaded by the reasoning of these authorities that there is no requirement for state complicity in the Act.\n\nThe Council for Refugees and the Board argued, convincingly in my view, that there is simply no need for a judicial gloss of the meaning of \"unwilling\" and \"unable\". As the Council argued, there is a clear distinction between the state's being unable to protect its citizens while they are situated in that state (which is considered in the \"fear of persecution\" analysis) and the individual's being \"unable\" to avail him- or herself of that protection, which refers to the relationship between the individual and the state outside the country.\n\nWhether the claimant is \"unwilling\" or \"unable\" to avail him- or herself of the protection of a country of nationality, state complicity in the persecution is irrelevant. The distinction between these two branches of the \"Convention refugee\" definition resides in the party's precluding resort to state protection: in the case of \"inability\", protection is denied to the claimant, whereas when the claimant is \"unwilling\", he or she opts not to approach the state by reason of his or her fear on an enumerated basis. In either case, the state's involvement in the persecution is not a necessary consideration. This factor is relevant, rather, in the determination of whether a fear of persecution exists.\n\nTest for Determining Fear of Persecution", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-46", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 46", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the court below, Urie J.A. appears to have taken greatest exception to the linkages made by the Board between various concepts inherent in the definition. Specifically, the Board linked the claimant's unwillingness to the state's inability to protect, and tied the former concept to the well-foundedness of the fear of persecution. These appear to be unobjectionable propositions. The problem for Urie J.A. arose from the Board's conclusion that a lack of state protection creates a presumption of persecution and well-foundedness of the claimant's fears. Although not cited, the Board's expression of this presumption is taken almost verbatim from Goodwin-Gill, supra, at p. 38.\n\nUrie J.A. appears to have concluded that the Board erred by making some sort of algebraic link between the various propositions advanced, thereby engaging in a process of circular reasoning. In his view, the Board developed a causative relationship between the claimant's unwillingness and persecution, by linking both concepts to the issue of whether the claimant's fear is well-founded. However, in Zalzali Décary J.A. had occasion to comment on his colleague's concerns, at p. 610, as follows:", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-47", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 47", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Ward, at 680, Urie, J.A., said it was important to avoid confusing \"the determination of persecution and ineffective protection\" and that \"the two concepts must be addressed and satisfied independently\" but, if I understand his conclusion correctly, as indicated at p. 681, he was anxious to avoid as a matter of fact having one (ineffective protection) serve as a presumption in favour of the other (persecution). I do not think he meant to say that these two concepts could not be interconnected for the purposes of interpreting the definition of a refugee in law. In my view, to accurately define what a refugee is it is important to examine the wording as a whole and interpret the whole in light of its component parts.\n\nWith respect to both Décary and Urie JJ.A., it is not clear to me that the Board purported to make an algebraic link, at least in the causative sense that Urie J.A. perceives.\n\nIt is clear that the lynch-pin of the analysis is the state's inability to protect: it is a crucial element in determining whether the claimant's fear is well-founded, and thereby the objective reasonableness of his or her unwillingness to seek the protection of his or her state of nationality. Goodwin-Gill's statement, the apparent source of the Board's proposition, reads as follows, at p. 38:\n\nFear of persecution and lack of protection are themselves interrelated elements. The persecuted clearly do not enjoy the protection of their country of origin, while evidence of the lack of protection on either the internal or external level may create a presumption as to the likelihood of persecution and to the well-foundedness of any fear. [Emphasis added.]", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-48", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 48", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely, and the fear well-founded, if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. But I see nothing wrong with this, if the Board is satisfied that there is a legitimate fear, and an established inability of the state to assuage those fears through effective protection. The presumption is not a great leap. Having established the existence of a fear and a state's inability to assuage those fears, it is not assuming too much to say that the fear is well-founded. Of course, the persecution must be real ‑‑ the presumption cannot be built on fictional events ‑‑ but the well-foundedness of the fears can be established through the use of such a presumption.\n\nIn this case, the presumption was apparently of some importance to the Board. It found the appellant to be a credible witness, thus accepting that he had a legitimate fear of persecution. Since Ireland's inability to protect was established through evidence that state agents had admitted their ineffectiveness, the Board was then able to presume the well-foundedness of the claimant's fears. In my view, this approach is correct and suffices for a finding of fear of persecution in this case.\n\nMore generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134:", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-49", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 49", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.\n\nSee also Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.), at p. 173. In the present case, the only real issue is the objective test. The Board here found Ward to be credible in his testimony, thus establishing the subjective branch. The issue is whether the fear is objectively justifiable.\n\nDoes the plaintiff first have to seek the protection of the state, when he is claiming under the \"unwilling\" branch in cases of state inability to protect? The Immigration Appeal Board has found that, where there is no proof of state complicity, the mere appearance of state ineffectiveness will not suffice to ground a claim. As Professor Hathaway, supra, puts it, at p. 130:\n\nObviously, there cannot be said to be a failure of state protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming:\n\nA refugee may establish a well-founded fear of persecution when the official authorities are not persecuting him if they refuse or are unable to offer him adequate protection from his persecutors . . . however, he must show that he sought their protection when he is convinced, as he is in the case at bar, that the official authorities ‑‑ when accessible ‑‑ had no involvement ‑‑ direct or indirect, official or unofficial ‑‑ in the persecution against him. (José Maria da Silva Moreira, Immigration Appeal Board Decision T86-10370, April 8, 1987, at 4, per V. Fatsis.)", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-50", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 50", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "This is not true in all cases. Most states would be willing to attempt to protect when an objective assessment established that they are not able to do this effectively. Moreover, it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.\n\nLike Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection \"might reasonably have been forthcoming\", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of \"Convention refugee\" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-51", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 51", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-52", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 52", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The Federal Court of Appeal's disposition in Satiacum may best be explained as exemplifying such a case of presumption of a state's ability to protect and of objective unreasonability in the claimant's failure to avail himself of this protection. In that case, an American Indian chief who was convicted of federal criminal charges fled to Canada before sentencing. Arrested in Canada a year later, he claimed refugee status. The persecution he alleged to have feared was a risk to his life if incarcerated in a federal prison. The Federal Court of Appeal found that Satiacum's fear did not meet the objective component of the test for fear of persecution, as it must be presumed that the United States judicial system is effective in affording a citizen just treatment. The court stated, at p. 176:\n\nIn the absence of exceptional circumstances established by the claimant, it seems to me that in a Convention refugee hearing, as in an extradition hearing, Canadian tribunals have to assume a fair and independent judicial process in the foreign country. In the case of a nondemocratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-53", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 53", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Although this presumption increases the burden on the claimant, it does not render illusory Canada's provision of a haven for refugees. The presumption serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant. Refugee claims were never meant to allow a claimant to seek out better protection than that from which he or she benefits already.\n\nIn summary, I find that state complicity is not a necessary component of persecution, either under the \"unwilling\" or under the \"unable\" branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. I recognize that these conclusions broaden the range of potentially successful refugee claims beyond those involving feared persecution at the hands of the claimant's nominal government. As long as this persecution is directed at the claimant on the basis of one of the enumerated grounds, I do not think the identity of the feared perpetrator of the persecution removes these cases from the scope of Canada's international obligations in this area. On this note, I now turn to a consideration of these enumerated grounds.\n\nB. Membership in a Particular Social Group", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-54", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 54", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Section 2(1) of the Act limits the grounds for a Convention refugee's well-founded fear of persecution to five possibilities: \"race, religion, nationality, membership in a particular social group or political opinion\". The appellant justifies his claim to Convention refugee status on the basis of his well-founded fear of persecution at the hands of the INLA, should he return to Northern Ireland, by reason of his membership in a particular social group, i.e., the INLA. The first issue to be addressed, therefore, is the scope of \"particular social group\" and whether this enumerated basis of persecution embraces INLA members.\n\nAttempts at defining the range of the category of \"particular social group\" in this case were not made until reaching the Federal Court of Appeal. The Immigration Appeal Board did not broach the issue, seemingly assuming that the INLA did indeed constitute a particular social group. In the Court of Appeal, the majority adopted a very narrow definition, at p. 674, excluding \"groups who by acts of terrorism seek to promote their aims, in this case the overthrow of the duly constituted authority\". MacGuigan J.A., on the other hand, delineated the reach of this category loosely, at p. 689, including within it any \"stable association with common purposes\". In my opinion, the proper scope of \"particular social group\" lies in between these two extremes, but would still exclude from its ambit Ward's membership in the INLA.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-55", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 55", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Canadian jurisprudence in which \"particular social group\" is interpreted has, until very recently, been quite sparse; the cases that did deal with this notion were usually handled on their own particular facts and lacked guidance with respect to a more general interpretation of the category: see Astudillo v. Minister of Employment and Immigration (1979), 31 N.R. 121 (F.C.A.), Arrechea Gonzalez v. Minister of Employment and Immigration (1991), F.C.A. A-899-90, Ahmed v. Minister of Employment and Immigration (1990), F.C.A. A-215-90, Lai v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. 245, Osorio Cruz v. Minister of Employment and Immigration (1988), I.A.B.D. M88-20043X, Nalliah v. Minister of Employment and Immigration (1987), I.A.B.D. M84-1642, Escoto v. Minister of Employment and Immigration (1987), I.A.B.D. T87-9024X, Incirciyan v. Minister of Employment and Immigration (1987), I.A.B.D. M87-1541X/M87-1248 and Balareso v. Minister of Employment and Immigration (1985), I.A.B.D. M 83-1542. Recently, the Federal Court of Appeal has begun to articulate a test which attempts to achieve a middle ground between the two positions advanced by the majority and the minority in the Court of Appeal in the present case: see Cheung v. Minister of Employment and Immigration, [1993] F.C.J. No. 309 (Q.L.), Appeal No. A-785-91 (F.C.A.) and Mayers v. Canada (Minister of Employment and Immigration) (1992), 97 D.L.R. (4th) 729. I shall address these two decisions in some detail below. International and foreign sources are also of considerable significance in the study of the meaning of \"particular social group\" and specifically in evaluating the test proposed recently by the Federal Court of Appeal.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-56", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 56", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "An examination of the Canadian and foreign doctrine and jurisprudence reveals three advocated approaches:\n\n(1) A very wide definition, similar to that adopted by MacGuigan J.A., pursuant to which the class serves as a safety net to prevent any possible gap in the other four categories;\n\n(2) A narrower definition that confines its scope by means of some appropriate limiting mechanism, recognizing that this class is not meant to encompass all groups; and\n\n(3) An even narrower definition, paralleling that formulated by the majority of the Federal Court of Appeal, that responds to concerns about morality and criminality by excluding terrorists, criminals and the like.\n\nI shall consider each of these suggested definitions in turn.\n\n\"Particular Social Group\" as Safety Net\n\nThe broad definition of \"particular social group\", comprising basically any alliance of individuals with a common objective, is most forcefully advocated by Arthur C. Helton, Director of the Political Asylum Project of the Lawyers Committee for International Human Rights. In his article, \"Persecution on Account of Membership in a Social Group As a Basis for Refugee Status\" (1983), 15 Colum. Hum. Rts. L. Rev. 39, at p. 45, Helton sets out his view of the scope of this category in these terms:\n\nThe intent of the framers of the Refugee Convention was not to redress prior persecution of social groups, but rather to save individuals from future injustice. The \"social group\" category was meant to be a catch-all which could include all the bases for and types of persecution which an imaginative despot might conjure up.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-57", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 57", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Isi Foighel refers to this category as a \"safety net\". \"[T]his category\", he states, \"was to include also race and ethnicity and, furthermore, was to operate as a kind of comprehensive provision for the categories of persons who had a legitimate claim upon being considered refugees in the international sense, although they were not clearly included in the categories specifically mentioned\". See Isi Foighel, \"The Legal Status of the Boat-People\", 48 Nordisk Tidsskrift for International Relations 217, at pp. 222-23. This interpretation essentially characterizes an association of people as a \"particular social group\" merely by virtue of their common victimization as the objects of persecution.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-58", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 58", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "This wide approach has been promoted by several other writers in the field. Guy Goodwin-Gill, in The Refugee in International Law, supra, at p. 30, describes as essential to the definition \"the factor of shared interests, values, or background ‑‑ a combination of matters of choice with other matters over which members of the group have no control\". Goodwin-Gill goes so far so as to enumerate as relevant uniting characteristics, in addition to ethnic, cultural and linguistic origin, education and family background, the factors of economic activity, shared values, outlook and aspirations. Daniel Compton, in \"Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar ‑‑ Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986)\" (1987), 62 Wash. L. Rev. 913, at p. 923, delimits the broad range of \"particular social group\" as \"a recognized grouping within a society, a group that shares some common experience\". Occasionally, it is true, these writers appear to qualify their approach somewhat by referring to \"legitimate\" groups or \"invidious\" persecution. But their essential theme remains that as long as some common thread binds the set of individuals together, whether on the basis of background, habits or status, the requirement that the feared persecution be based on membership in a particular social group is met.\n\nThe proponents of this expansive view rely on the genesis of the category of \"particular social group\". It was suggested as a last-minute expansion of the Convention's definition of \"refugee\" by the Swedish delegate (A/CONF.2/SR.3, at p. 14):\n\nMr. PETREN (Sweden) . . .", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-59", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 59", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the first place, experience had shown that certain refugees had been persecuted because they belonged to particular social groups. The draft Convention made no provision for such cases, and one designed to cover them should accordingly be included.\n\nThe proponents of the liberal approach justify their position by seizing upon this limited discussion of the addition's background. Grahl-Madsen, supra, at p. 219, justifies his wide definition, for example, on the basis of the intent of the framers. He asserts:\n\nThe reason `membership of a particular social group' was added by the Conference of Plenipotentiaries as [sic] an afterthought. Many cases falling under this term are also covered by the terms discussed above, but the notion of `social group' is of broader application than the combined notions of racial, ethnic, and religious groups, and in order to stop a possible gap, the Conference felt that it would be as well to mention this reason for persecution explicitly.\n\nOthers make the same point; see Maureen Graves, \"From Definition to Exploration: Social Groups and Political Asylum Eligibility\" (1989), 26 San Diego L. Rev. 739, at pp. 747-49; Compton, supra, at pp. 925-26.\n\nIn my view, the supporters of the wide definition exaggerate the implications of the intention of the framers. The fact that this class was added to enlarge the range of cases falling within the definition of \"refugee\" therein was initially a Cold War reaction aimed at ensuring a haven for capitalists fleeing the persecution they encountered in Eastern Bloc regimes after the World War II. Daniel Compton, supra, made this historical observation at pp. 925-26:", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-60", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 60", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The most well-known examples of social group-based persecution at [the time of drafting the Convention] occurred in Eastern Europe following the rise of the Communist regimes. Subsequent cases from European courts of nations party to the Convention have recognized, for example, the \"capitalist class\" and \"independent businessmen\" and their families as valid social groups in granting refugee status to persons fleeing Eastern Europe. Examples such as these are probably what the Swedes had in mind.\n\nSee also R. Plender, \"Admission of Refugees: Draft Convention on Territorial Asylum\" (1977-78), 15 San Diego L. Rev. 45, at p. 52; and Grahl-Madsen, supra, at pp. 219-20, who reviews the foreign jurisprudence on these Cold War cases. The persecution in the \"Cold War cases\" was imposed upon the capitalists not because of their contemporaneous activities but because of their past status as ascribed to them by the Communist leaders. Given this historical origin, the definition of \"particular social group\" must, at the very least, embrace these types of situations. The scope of \"particular social group\", however, was not meant to be limited to that specific historical circumstance and no one has ever so contended. The ambit of this portion of the definition of \"Convention refugee\" must be evaluated on the basis of the basic principles underlying the treaty.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-61", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 61", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "As explained earlier, international refugee law was meant to serve as a \"substitute\" for national protection where the latter was not provided. For this reason, the international role was qualified by built-in limitations. These restricting mechanisms reflect the fact that the international community did not intend to offer a haven for all suffering individuals. The need for \"persecution\" in order to warrant international protection, for example, results in the exclusion of such pleas as those of economic migrants, i.e., individuals in search of better living conditions, and those of victims of natural disasters, even when the home state is unable to provide assistance, although both of these cases might seem deserving of international sanctuary.\n\nSimilarly, the drafters of the Convention limited the included bases for a well-founded fear of persecution to \"race, religion, nationality, membership in a particular social group or political opinion\". Although the delegates inserted the social group category in order to cover any possible lacuna left by the other four groups, this does not necessarily lead to the conclusion that any association bound by some common thread is included. If this were the case, the enumeration of these bases would have been superfluous; the definition of \"refugee\" could have been limited to individuals who have a well-founded fear of persecution without more. The drafters' decision to list these bases was intended to function as another built-in limitation to the obligations of signatory states. The issue that arises, therefore, is the demarcation of this limit.\n\nThe UNHCR Handbook does not appear to address this issue specifically. Paragraphs 77-79 deal with the meaning of \"membership of a particular social group\":", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-62", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 62", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "77. A \"particular social group\" normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality.\n\n78. Membership of such a particular social group may be at the root of persecution because there is no confidence in the group's loyalty to the Government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government's policies.\n\n79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution.\n\nThe language is sufficiently general that it may, on one view of the matter, be interpreted as accepting the expansive approach just discussed. But that is far from certain. The handbook may, I think, with equal consistency, be read more narrowly. That, having regard to the context and purpose of the treaty, appears to me to be the better approach.\n\n\"Particular Social Group\" Limited by Anti-Discrimination Notions\n\nUnderlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows:\n\nCONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-63", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 63", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates. It sets out, in a general fashion, the intention of the drafters and thereby provides an inherent limit to the cases embraced by the Convention. Hathaway, supra, at p. 108, thus explains the impact of this general tone of the treaty on refugee law:\n\nThe dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard.\n\nThis theme sets the boundaries for many of the elements of the definition of \"Convention refugee\". \"Persecution\", for example, undefined in the Convention, has been ascribed the meaning of \"sustained or systemic violation of basic human rights demonstrative of a failure of state protection\"; see Hathaway, supra, at pp. 104-105. So too Goodwin-Gill, supra, at p. 38, observes that \"comprehensive analysis requires the general notion [of persecution] to be related to developments within the broad field of human rights\". This has recently been recognized by the Federal Court of Appeal in the Cheung case.\n\nIn similar fashion, the enumeration of specific foundations upon which the fear of persecution may be based to qualify for international protection parallels the approach adopted in international anti-discrimination law. Thus Goodwin-Gill, supra, at p. 39, notes:", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-64", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 64", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The references to `race, religion, nationality, membership of [sic] a particular social group, or political opinion' illustrate briefly the characteristics of individuals and groups which are considered worthy of special protection. These same factors have figured in the development of the fundamental principle of non-discrimination in general international law, and have contributed to the formulation of other fundamental human rights.\n\nIn distilling the contents of the head of \"particular social group\", therefore, it is appropriate to find inspiration in discrimination concepts. Hathaway, supra, at pp. 135-36, explains that the anti-discrimination influence in refugee law is justified on the basis of those sought to be protected thereby:\n\nThe early refugee accords did not articulate this notion of disfranchisement or breakdown of basic membership rights, since refugees were defined simply by specific national, political, and religious categories, including anti-Communist Russians, Turkish Armenians, Jews from Germany, and others. The de facto uniting criterion, however, was the shared marginalization of the groups in their states of origin, with consequent inability to vindicate their basic human rights at home. These early refugees were not merely suffering persons, but were moreover persons whose position was fundamentally at odds with the power structure in their home state. It was the lack of a meaningful stake in the governance of their own society which distinguished them from others, and which gave legitimacy to their desire to seek protection abroad.\n\nThe manner in which groups are distinguished for the purposes of discrimination law can thus appropriately be imported into this area of refugee law.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-65", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 65", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "This theme of international concern for discrimination and human rights seems to underlie the recent trend in the jurisprudence of the Federal Court of Appeal. In Mayers v. Canada (Minister of Employment and Immigration), supra, the court reviewed the decision of a credible basis panel. Pursuant to this decision, it was found that there was some evidence upon which the Refugee Division might determine the applicant to be a Convention refugee in her claim to fear persecution on the basis of membership in the particular social group of \"Trinidadian women subject to wife abuse\". Although not strictly necessary to this review, Mahoney J.A. addressed the question of whether this group could meet the definition of Convention refugee. In doing so, he articulated the following test, at p. 737, proposed by counsel for the applicant:\n\n. . . a particular social group means: (1) a natural or non-natural group of persons with (2) similar shared background, habits, social status, political outlook, education, values, aspirations, history, economic activity or interests, often interests contrary to those of the prevailing government, and (3) sharing basic, innate, unalterable characteristics, consciousness and solidarity, or (4) sharing a temporary but voluntary status, with the purpose of their association being so fundamental to their human dignity that they should not be required to alter it.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-66", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 66", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "In Cheung v. Minister of Employment and Immigration, supra, the court was more directly confronted with the question of the test for \"particular social group\", in deciding whether women in China who have more than one child and are faced with forced sterilization constitute such a group. In order to make this evaluation, Linden J.A. adopted the test proposed in Mayers v. Canada (Minister of Employment and Immigration), supra. In applying the test to the facts before him, Linden J.A. held:\n\nIt is clear that women in China who have one child and are faced with forced sterilization satisfy enough of the above criteria to be considered a particular social group. These people comprise a group sharing similar social status and hold a similar interest which is not held by their government. They have certain basic characteristics in common. All of the people coming within this group are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a woman's reproductive liberty is a basic right \"ranking high in our scale of values\" (E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388).\n\nIn this way, the focus of the inquiry was on the basic right of reproductive control.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-67", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 67", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "This approach to delineating the scope of \"particular social group\" is developed further in American quasi-judicial authority. In Matter of Acosta, Interim Decision 2986, 1985 WL 56042 (B.I.A.) (Database FIM-81A), the United States Board of Immigration Appeals was confronted with the claim for asylum of an El Salvador citizen. The claimant based his fear of persecution on his membership in a cooperative organization of taxi drivers. According to the claimant, members of the cooperative had been targeted by anti-government guerrillas for having refused to comply with the latter's requests to engage in work stoppages. In finding that the cooperative did not constitute a \"particular social group\", the Board defined this term in a manner that reflects classic discrimination analysis. It stated, at pp. 37-39:", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-68", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 68", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "We find the well-established doctrine of ejusdem generis, meaning literally, `of the same kind,' to be most helpful in construing the phrase `membership in a particular social group.' That doctrine holds that general words used in an enumeration with specific words should be construed in a manner consistent with the specific words. See, e.g., Cleveland v. United States, 329 U.S. 14 (1946); 2A C. Sands, supra, s 47.17. The other grounds of persecution in the Act and the Protocol listed in association with `membership in a particular social group' are persecution on account of `race,' `religion,' `nationality,' and `political opinion.' Each of these grounds describes persecution aimed at an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed. See A. Grahl-Madsen, supra, at 217; G. Goodwin-Gill, supra, at 31. Thus, the other four grounds of persecution enumerated in the Act and the Protocol restrict refugee status to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-69", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 69", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Applying the doctrine of ejusdem generis, we interpret the phrase `persecution on account of membership in a particular social group' to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. Only when this is the case does the mere fact of group membership become something comparable to the other four grounds of persecution under the Act, namely, something that either is beyond the power of an individual to change or that is so fundamental to his identity or conscience that it ought not be required to be changed. By construing `persecution on account of membership in a particular social group' in this manner, we preserve the concept that refuge is restricted to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution.\n\nWhat is excluded by this definition are \"groups defined by a characteristic which is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights\"; see Hathaway, supra, at p. 161.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-70", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 70", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Anti-discrimination law in Canada as embodied by s. 15 of the Charter and the jurisprudence decided thereunder, although still not completely developed, makes reference to very similar criteria. In the seminal equality case of Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, non-citizenship was held to be an analogous ground of discrimination because it shared the same overarching characteristics of those enumerated in s. 15 of the Charter . In that case, I articulated these common characteristics as follows, at p. 195:\n\nThe characteristic of citizenship is one typically not within the control of the individual and, in this sense, is immutable. Citizenship is, at least temporarily, a characteristic of personhood not alterable by conscious action and in some cases not alterable except on the basis of unacceptable costs.\n\nThe \"analogous grounds\" approach to s. 15 of the Charter parallels that of the Federal Court of Appeal in its recent judgments, as well as the United States Immigration Board of Appeals, with respect to the definition of \"particular social group\" in the distillation of and extrapolation from the common thread running through the enumerated heads.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-71", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 71", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "These types of tests appear to be appropriate to us. Canada's obligation to offer a haven to those fleeing their homelands is not unlimited. Foreign governments should be accorded leeway in their definition of what constitutes anti-social behaviour of their nationals. Canada should not overstep its role in the international sphere by having its responsibility engaged whenever any group is targeted. Surely there are some groups, the affiliation in which is not so important to the individual that it would be more appropriate to have the person dissociate him- or herself from it before Canada's responsibility should be engaged. Perhaps the most simplified way to draw the distinction is by opposing what one is against what one does, at a particular time. For example, one could consider the facts in Matter of Acosta, in which the claimant was targeted because he was a member of a taxi driver cooperative. Assuming no issues of political opinion or the right to earn some basic living are involved, the claimant was targeted for what he was doing and not for what he was in an immutable or fundamental way.\n\nThe meaning assigned to \"particular social group\" in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, supra, Cheung, supra, and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify three possible categories:\n\n(1) groups defined by an innate or unchangeable characteristic;\n\n(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-72", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 72", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "(3) groups associated by a former voluntary status, unalterable due to its historical permanence.\n\nThe first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person.\n\n\"Particular Social Group\": Exclusion of Criminals and Terrorists\n\nThe majority of the Federal Court of Appeal held that international refugee protection should not embrace terrorists, such as members of the INLA. Urie J.A. put it this way, at pp. 674-75:\n\nCounsel pointed out that paragraph 3(g) of the Act recognizes Canada's need to fulfil its \"international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted\". To be consistent in the fulfilment of its humanitarian goal, groups who by acts of terrorism seek to promote their aims, in this case the overthrow of the duly constituted authority, should be excluded from those social groups who meet the definition of Convention refugee. To do otherwise, counsel said, would allow Canada to be a haven for persons who admit to sympathizing with or having committed or participated in terrorists acts in other countries, with or without disavowing their support of terrorists.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-73", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 73", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The mechanism adopted by Urie J.A. to ensure the exclusion of these undesirable claimants, in this way, is a limitation of the scope of the definition of \"particular social group\". An examination of the Act as a whole, however, reveals that the concerns he articulated are anticipated and provided for elsewhere in the Act. In my view, therefore, such a restriction on the scope of \"particular social group\" is unnecessary and renders redundant the explicit exclusionary provisions.\n\nThe Act lists classes of claimants considered to be inadmissible in s. 19. Several of these relate to concerns about criminality, violence and government subversion. Subsection (1) in relevant part reads:\n\n19. (1) No person shall be granted admission if he is a member of any of the following classes:\n\n. . .\n\n(c) persons who have been convicted of an offence that, if committed in Canada, constitutes or, if committed outside Canada, would constitute an offence that may be punishable under any Act of Parliament and for which a maximum term of imprisonment of ten years or more may be imposed, except persons who have satisfied the Governor in Council that they have rehabilitated themselves and that at least five years have elapsed since the termination of the sentence imposed for the offence;\n\n(d) persons who there are reasonable grounds to believe will\n\n(i) commit one or more offences punishable by way of indictment under any Act of Parliament, or\n\n(ii) engage in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment;", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-74", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 74", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "(e) persons who have engaged in or who there are reasonable grounds to believe will engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, except persons who, having engaged in such acts, have satisfied the Minister that their admission would not be detrimental to the national interest;\n\n(f) persons who there are reasonable grounds to believe will, while in Canada, engage in or instigate the subversion by force of any government;\n\n(g) persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts of violence . . . .\n\nSection 19(2) goes on to preclude the granting of admission to persons who have been convicted of offences that would have constituted indictable or summary conviction offences, had they been committed in Canada, unless these persons demonstrate that they have become rehabilitated and certain delineated time periods have elapsed.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-75", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 75", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "A claimant for refugee status in Canada who has established his or her inclusion in the definition of \"Convention refugee\" must still overcome the hurdle of s. 19 before entry into this country will be permitted. These exclusions on the basis of criminality have been carefully drafted to avoid the admission of claimants who may pose a threat to the Canadian government or to the lives or property of the residents of Canada. The provisions specifically give the Minister of Employment and Immigration enough flexibility, however, to reassess the desirability of permitting entry to a claimant with a past criminal record, where the Minister is convinced that rehabilitation has occurred. In this way, Parliament opted not to treat a criminal past as a reason to be estopped from obtaining refugee status. If the scope of the term \"particular social group\" were interpreted so as to exclude criminals and terrorists, as the majority of the Court of Appeal did, this legislative decision would be ignored. I think it more appropriate to avoid such a blanket exclusion in the face of an explicit, comprehensive structure for the assessment of these potentially inadmissible claimants.\n\nIn the amended Immigration Act, R.S.C., 1985, c. I-2, Parliament has further responded to the concern of keeping out dangerous and criminal claimants by excluding from the definition of \"Convention refugee\" in s. 2 of the Act any person to whom the Convention does not apply pursuant to s. E or F of Art. 1 thereof, which sections are set out in the schedule to the Act (R.S.C., 1985, c. 28 (4th Supp.), s. 34). The provision of Art. 1 of the Convention relevant for the purposes of this analysis is s. F, which reads:", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-76", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 76", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:\n\n(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;\n\n(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;\n\n(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-77", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 77", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The articulation of this exclusion for the \"commission\" of a crime can be contrasted with those of s. 19 of the Act which refers to \"convictions\" for crimes. Hathaway, supra, at p. 221, interprets this exclusion to embrace \"persons who are liable to sanctions in another state for having committed a genuine, serious crime, and who seek to escape legitimate criminal liability by claiming refugee status\". In other words, Hathaway would appear to confine paragraph (b) to accused persons who are fugitives from prosecution. The interpretation of this amendment was not argued before us. I note, however, that Professor Hathaway's interpretation seems to be consistent with the views expressed in the Travaux préparatoires, regarding the need for congruence between the Convention and extradition law; see statement of United States delegate Henkin, U.N. Doc. E/AC.32/SR.5 (January 30, 1950), at p. 5. As such, Ward would still not be excluded on this basis, having already been convicted of his crimes and having already served his sentence. This addition to the Act does answer, however, in a more general fashion, the concerns raised by the majority of the Court of Appeal and renders less forceful the argument that morality and criminality concerns need be accommodated by narrowing the definition of \"particular social group\".\n\nIs Ward a Member of a Particular Social Group?\n\nApplying the three-pronged interpretation of \"particular social group\" adopted earlier to the case at bar, Ward does not meet the definition of \"Convention refugee\" and thus cannot be admitted into Canada on the basis of his fear of persecution at the hands of the INLA upon his return to Northern Ireland.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-78", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 78", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "First, we must define the association at issue. In the Court of Appeal, Ward's affiliation was designated as \"member of the INLA\" (by Urie J.A., at p. 677) and as \"members and former members of the INLA\" (by MacGuigan J.A., at p. 691). Ward's claim is that he fears persecution, should he return to Northern Ireland, because the INLA would retaliate to avenge his release of the hostages. This act was effected by Ward qua member of the INLA. Ward also testified that he feared persecution by the INLA because of its concern that he \"turn supergrass\". This fear is present whether or not Ward renounced his membership in the INLA, as the possibility of revealing organization secrets is present in the case of both present and former members. Thus, no subsequent disassociation from this group by Ward had any impact on his fear. I do not think it appropriate, therefore, to say that Ward's fear was based on his status as a former member of the INLA. The fact that Ward might no longer be a member is merely a result of the persecution feared, not its foundation.\n\nThe group of INLA members is not a \"particular social group\". To review, the test given above includes:\n\n(1) groups defined by an innate or unchangeable characteristic;\n\n(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and\n\n(3) groups associated by a former voluntary status, unalterable due to its historical permanence.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-79", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 79", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Clearly, the INLA members are not characterized by an innate or unalterable characteristic. The third branch of the definition is not applicable to Ward, since the group is associated in the present and membership is not unchangeable owing to its status as a historical fact. (It seems that this branch of the definition will only come into play when the identity of the persecutor does not coincide with that of the social group as it does in this case. For this prong to be relevant, the social group should no longer be actively affiliated; if the group has disbanded, it cannot possibly persecute.) As for the second branch, the INLA is a voluntary association committed to the attainment of specific political goals by any means, including violence, but I do not believe that this objective can be said to be so fundamental to the human dignity of its members such that it constitutes a \"particular social group\". The fight for independence from the United Kingdom and unification with the Irish Republic may be very serious political ends for INLA members, but requiring them to abandon their violent means of expressing and achieving these goals does not amount to an abdication of their human dignity.\n\nMoreover, I do not accept that Ward's fear was based on his membership. Rather, in my view, Ward was the target of a highly individualized form of persecution and does not fear persecution because of his group characteristics. Ward feels threatened because of what he did as an individual, and not specifically because of his association. His membership in the INLA placed him in the circumstances that led to his fear, but the fear itself was based on his action, not on his affiliation.\n\nC. Political Opinion", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-80", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 80", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Political opinion was not raised as a ground for fear of persecution either before the Board or the Court of Appeal. It was raised for the first time in this Court by the intervener, the United Nations High Commissioner for Refugees, who, in his factum, expressed the view that the Court of Appeal had \"erred in considering that the claimant's fear of persecution was based on membership in an organization\". The additional ground was ultimately accepted by the appellant during oral argument. I note that the UNHCR Handbook, at p. 17, paragraph 66, states that it is not the duty of a claimant to identify the reasons for the persecution. It is for the examiner to decide whether the Convention definition is met; usually there will be more than one ground (idem, paragraph 67). While political opinion was raised at a very late stage of the proceedings, the Court has decided to deal with it because this case is one involving human rights and the issue is critical to the case.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-81", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 81", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Political opinion as a basis for a well-founded fear of persecution has been defined quite simply as persecution of persons on the ground \"that they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party\"; see Grahl-Madsen, supra, at p. 220. The persecution stems from the desire to put down any dissent viewed as a threat to the persecutors. Grahl-Madsen's definition assumes that the persecutor from whom the claimant is fleeing is always the government or ruling party, or at least some party having parallel interests to those of the government. As noted earlier, however, international refugee protection extends to situations where the state is not an accomplice to the persecution, but is unable to protect the claimant. In such cases, it is possible that a claimant may be seen as a threat by a group unrelated, and perhaps even opposed, to the government because of his or her political viewpoint, perceived or real. The more general interpretation of political opinion suggested by Goodwin-Gill, supra, at p. 31, i.e., \"any opinion on any matter in which the machinery of state, government, and policy may be engaged\", reflects more care in embracing situations of this kind.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-82", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 82", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Two refinements must be added to the definition of this category. First, the political opinion at issue need not have been expressed outright. In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant. The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant.\n\nSecond, the political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. The political opinion that lies at the root of the persecution, therefore, need not necessarily be correctly attributed to the claimant. Similar considerations would seem to apply to other bases of persecution.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-83", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 83", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Ward's fear of being killed by the INLA, should he return to Northern Ireland, stems initially from the group's threat of executing the death sentence imposed by its court-martial. The act for which Ward was so punished was his assistance in the escape of the hostages he was guarding. From this act, a political opinion related to the proper limits to means used for the achievement of political change can be imputed. Ward had many reasons to go through with the assassination order and only one, that of acting in conformity with his beliefs, for doing what he eventually did. Ward recognized the risk of serious retribution by the INLA upon being caught, as reflected in his testimony before the Immigration Appeal Board:\n\nQ. What type of discipline is it?\n\nA. The discipline is once you are a member you are always a member. And if anybody steps outside those lines of demarcation the only alternative is to assassinate them, do away with them.\n\nQ. So if a person does not tow [sic] the line, once he is a member and he does not tow [sic] the line what happens to him?\n\nA. He will be shot. . . .\n\nNevertheless, Ward felt that to carry out the INLA's hostage assassination order would have been going too far. He described his reasons for turning the hostages free as follows:\n\nQ. So the order [to shoot the hostages] has come down then, and what happened next?\n\nA. Well I found myself in a predicament.\n\nQ. Yes?\n\nA. Both of conscience and morals, these things all go through your head in a situation like that. Quite frankly, I wanted no part of it at that stage.\n\nQ. Did you express this desire or this feeling to anyone?\n\nA. To one particular person that was involved there. I cannot do this. But rules are rules, if you voice your opinion to the wrong people or too loudly you would be joining the victims.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-84", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 84", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Q. So what happened next?\n\nA. What happened was, I gave the situation a lot of thought and consideration. I thought of the implications of various actions. Things went through my head and the final conclusion I came to was I could not have any part of it.\n\n. . .\n\nQ. The order came down from the Army council. And you knew that it was your responsibility to protect these people so that that order, I guess, could be carried out. Correct?\n\nA. Yes.\n\nQ. And you had a problem with that. You realized that you could not go along with the killing?\n\nA. They were innocent people . . . . I could not live with my own conscience if I permitted this to go on. The decision I came to in my own mind was to try to release him.\n\nTo Ward, who believes that the killing of innocent people to achieve political change is unacceptable, setting the hostages free was the only option that accorded with his conscience. The fact that he did or did not renounce his sympathies for the more general goals of the INLA does not affect this. This act, on the other hand, made Ward a political traitor in the eyes of a militant para-military organization, such as the INLA, which supports the use of terrorist tactics to achieve its ends. The act was not merely an isolated incident devoid of greater implications. Whether viewed from Ward's or the INLA's perspective, the act is politically significant. The persecution Ward fears stems from his political opinion as manifested by this act.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-85", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 85", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appropriateness of the application of this ground to the facts in this case is confirmed when contrasted with a recent United States Supreme Court disposition of a similar issue. In I.N.S. v. Elias-Zacarias, 112 S.Ct. 812 (1992), a Guatemalan claimant sought asylum because of his fear of persecution at the hands of the anti-government guerrillas owing to his refusal to join them. For the majority, Scalia J. was not convinced that the claimant's motive, nor that perceived by the guerrillas to be his motive, was politically based. He stated, at pp. 815-16:\n\nEven a person who supports a guerrilla movement might resist recruitment for a variety of reasons ‑‑ fear of combat, a desire to remain with one's family and friends, a desire to earn a better living in civilian life, to mention only a few. The record in the present case not only failed to show a political motive on Elias-Zacarias' part; it showed the opposite. He testified that he refused to join the guerrillas because he was afraid that the government would retaliate against him and his family if he did so. Nor is there any indication (assuming, arguendo, it would suffice) that the guerrillas erroneously believed that Elias-Zacarias' refusal was politically based. [Emphasis in original.]\n\nIn Ward's case, a contrario, his act was inconsistent with any other possible motive. He was already a member of the INLA; any fear of retaliation could have been dispelled simply by executing the order. The rationale underlying his decision was unequivocal, both in his eyes and in those of the INLA.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-86", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 86", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "A positive labelling of Ward as a \"Convention refugee\" because of his well-founded fear of persecution for reasons of political opinion meets the concerns of Urie J.A., in the Court of Appeal, who remarked, at p. 678, that it would be absurd to allow Ward into Canada owing to the fact that he had acted contrary to the interests of the INLA, because \"[i]f such a view were to be taken anyone who dissents on anything could be said to be a member of a particular social group\". Permitting Ward entry on the basis of feared persecution because of political opinion provides the focus needed in this inquiry. Not just any dissent to any organization will unlock the gates to Canadian asylum; the disagreement has to be rooted in a political conviction. This approach to Ward's case would preclude a former Mafia member, for example, from invoking it as precedent.\n\nSection 15 of the Charter", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-87", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 87", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The intervener, Canadian Council for Refugees, has raised the argument that the majority decision of the Federal Court of Appeal imposes two requirements having a discriminatory impact on historically disadvantaged groups such as women and children, by making it more difficult for them to obtain refugee status in Canada. These two requirements are, first, that social group activities be viewed as a possible danger to the state in order to qualify as a social group, and second, that state complicity be present. Essentially, the argument can be reduced to the contention that differential impact will exist since persecution of women and children is less likely to meet these criteria. I do not find this argument convincing, but I need not enter into it further since I have found both these aspects of the majority decision incorrect for other reasons. Recourse to s. 15 of the Charter is, therefore, unnecessary.\n\nDual Nationality", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-88", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 88", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "Ward's citizenship, by virtue of his being a resident of Northern Ireland which forms part of the United Kingdom, effectively endows him with British citizenship; see the British Nationality Act 1981, 1981 (U.K.), c. 61. On January 1, 1983, British citizenship was automatically acquired by all those citizens of the United Kingdom and the Colonies who had the right of abode in the United Kingdom on that date pursuant to the British Nationality Act 1981. During the oral hearing, Ward's counsel effectively admitted the Board's error in this regard and conceded Ward's dual nationality. This makes unnecessary a consideration of burden of proof, but it is right to say that I agree with the Court of Appeal that the Board erred in placing the burden of proof on the Minister. This burden includes a showing of well-founded fear of persecution in all countries of which the claimant is a national.\n\nIn considering the claim of a refugee who enjoys nationality in more than one country, the Board must investigate whether the claimant is unable or unwilling to avail him- or herself of the protection of each and every country of nationality. Although never incorporated into the Immigration Act and thus not strictly binding, paragraph 2 of Art. 1(A)(2) of the 1951 Convention infuses suitable content into the meaning of \"Convention refugee\" on the point. This paragraph of the Convention provides:\n\nArticle 1\n\n. . .\n\nA. . . .\n\n(2) . . .", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-89", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 89", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "In the case of a person who has more than one nationality, the term \"the country of his nationality\" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on a well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.\n\nAs described above, the rationale underlying international refugee protection is to serve as \"surrogate\" shelter coming into play only upon failure of national support. When available, home state protection is a claimant's sole option. The fact that this Convention provision was not specifically copied into the Act does not render it irrelevant. The assessment of Convention refugee status most consistent with this theme requires consideration of the availability of protection in all countries of citizenship.\n\nThis conclusion is bolstered by general rules of statutory interpretation. Section 33(2) of the Interpretation Act , R.S.C., 1985, c. I-21 , stipulates that words in the singular include the plural. Consequently, references to \"country of nationality\" in the definition of \"Convention refugee\" in s. 2(1) of the Immigration Act should be read as including \"countries of nationality\".", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-90", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 90", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "The appellant argues that the presence of s. 46.04(1)(c) of the Act (resulting from the amendments effected by S.C. 1988, c. 35, s. 14, effective January 1, 1989) is inconsistent with a requirement of demonstrating a lack of protection in all countries of citizenship. Section 46.04(1)(c) precludes eligibility for landed status in Canada for a claimant who has demonstrated his or her status as a Convention refugee, where the claimant is \"a national or citizen of a country, other than the country that the person left, or outside of which the person remains, by reason of fear of persecution\". The appellant's contention is, essentially, that if the Act's definition of \"Convention refugee\" were to encompass inability or unwillingness to avail himself of the protection of each country of nationality, then s. 46.04(1)(c) would be redundant.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-91", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 91", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "I am not persuaded by this argument. The right to apply for the status of permanent resident is but one of several consequences flowing from the characterization of a claimant as a Convention refugee. The Convention refugee also benefits from the right to remain in Canada (s. 4(2.1)), the right not to be deported to the country where the refugee has a well-founded fear of persecution (s. 53(1)) and the right to work while in Canada (s. 19(4)(j) of the Immigration Regulations, 1978, SOR/78-172). None of these provisions requires assurance that the claimant has exhausted his or her search for protection in every country of nationality. The exercise of assessing the claimant's fear in each country of citizenship at the stage of determination of \"Convention refugee\" status, before conferring these rights on the claimant, accords with the principles underlying international refugee protection. Otherwise, the claimant would benefit from rights granted by a foreign state while home state protection had still been available. The reference to other countries of nationality in s. 46.04(1)(c) is probably intended as a double-check on the refugee's lack of access to national protection, in case of changed circumstances or new revelations, before the significant status of permanent resident is bestowed.\n\nAs alluded to previously, and as conceded by appellant's counsel to be in error, the Board concluded that it could not make a finding of dual citizenship because there was insufficient evidence to do so. The Board commented, at p. 55, however, that had it\n\n. . . concluded that the claimant was also a national of the United Kingdom, the Board would have made a finding that the claimant's life would be in danger from the INLA if he was returned to the United Kingdom.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-92", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 92", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "This finding, however, is insufficient for the purposes of the determination that must be made by the Board. It does not address the real issue. The fact that Ward's life will be in danger should he be returned either to Ireland or to Great Britain is not disputed by anyone; the question, rather, is whether Ward can be protected from that danger. The Board never made a finding of fact on the real issue ‑‑ the ability of the British to protect Ward.\n\nAs explained above, the well-foundedness of a claimant's fear of persecution can be grounded in the concept of \"inability to protect\", assessed with respect to each and every country of nationality. Since the Board failed to make a finding on this point, as far as Great Britain is concerned, its ultimate finding of fear of persecution there is similarly erroneous. The validity of Ward's claim is dependant upon such a finding. This case must, therefore, be referred back to the Board (now the Immigration and Refugee Board) for a determination as to whether Ward can be afforded protection in Great Britain.\n\nClearly, the inability of a second state of nationality to protect can be established where the claimant has actually approached the state and been denied protection. Where, as in the case of Ward, the second state has not actually been approached by the claimant, the principles delineated above regarding the home state should apply. In other words, Great Britain should be presumed capable of protecting its nationals.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "scc-1023-93", + "doc_type": "caselaw", + "act_code": "[1993] 2 SCR 689", + "act_short": "Ward", + "act_name": "Canada (Attorney General) v. Ward", + "section": "", + "citation": "Canada (Attorney General) v. Ward, [1993] 2 SCR 689", + "marginal_note": "excerpt 93", + "heading": "The refugee definition; a particular social group; the availability of state protection", + "part": "Supreme Court of Canada", + "division": "", + "text": "An underlying premise of this presumption, however, is that citizenship carries with it certain basic consequences. One of these, as noted by MacGuigan J.A., at p. 699, is the right to gain entry to the country at any time. The appellant presented evidence, albeit not by way of expert opinion, of the existence of the Prevention of Terrorism (Temporary Provisions) Act 1984. The current version of this Act (Prevention of Terrorism (Temporary Provisions) Act 1989, 1989 (U.K.), c. 4), which replaced the Prevention of Terrorism (Temporary Provisions) Act 1984, seems to enable the British Government to prohibit a national from being in, or entering, Great Britain, if the national has been \"concerned in the commission, preparation or instigation of acts of terrorism\" connected with the affairs of Northern Ireland; see ss. 4 and 5 of the Act. Such evidence might serve to rebut the presumption by demonstrating a lack of protection afforded by Great Britain. Denial of admittance to the home territory is offered by the UNHCR in its Handbook, at paragraph 99, as a possible example of what might amount to a refusal of protection. The applicability of the presumption and its rebuttal are matters that depend upon the particular circumstances of this case and which must be determined by the Board.\n\nConclusion\n\nFor these reasons, I would allow the appeal, set aside the order of the Federal Court of Appeal and remit the case back to the Immigration and Refugee Board for an evaluation consistent with these reasons of the appellant's claim with reference to his second state of citizenship, Great Britain.\n\nAppeal allowed.", + "current_to": "1993-06-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + } +] \ No newline at end of file