The Security Nexus: a Review of the SCC Mason Decision
Canada’s highest court has clarified an important aspect of the inadmissibility scheme within Canadian immigration law. The Supreme Court released the Mason decision last week, in which they interpret section 34(1)(e) of the Immigration and Refugee Protection Act (the IRPA).
This section reads as follows: “any permanent resident or foreign national is inadmissible on security grounds for engaging in acts of violence that would or might endanger the lives or safety of persons in Canada.” This section means that if a permanent resident or foreign national commits an act of violence, or even plans an act of violence, they could be deemed inadmissible to Canada, even if they are not convicted of a crime.
The question for the courts was whether the violent conduct needed to have a “nexus” or connection to national security in order for someone to be deemed inadmissible, or if a broader interpretation of any violent conduct was reasonable.
Background
The Appellants in this case were not convicted of a crime. Mason was accused of shooting someone at a bar and granted a conditional discharge. The second Appellant, Mr. Dlieow’s, had his charges of intimate partner violence stayed. Both were deemed inadmissible under section 34(1)(e), which the Immigration Appeal Division (IAD) interpreted to not require a link to national security, but rather security in a broad sense, meaning any violent conduct was captured by the provision.
Imagine this, two people are accused of simple assault. They are both in jail with pending charges. One is a permanent resident, the other is a citizen. Both are granted conditional discharges. The citizen goes free. The permanent resident is placed in immigration detention, deemed inadmissible, and deported. This was a potential outcome of the IAD’s interpretation.
The IAD’s decision was appealed to the Federal Court, which held that there did in fact need to be a nexus or link with national security. The Federal Court of Appeal restored the IAD’s interpretation of 34(1)(e). Thus, this case was appealed to the Supreme Court of Canada, which held that the section does in fact require a nexus with national security.
This decision contains a robust discussion on the application of the Vavilov standard of review framework, but that is a topic for another day. Instead, this blog will review the main reasons why the IAD’s interpretation of section 34(1)(e) was unreasonable.
This decision is important because being deemed inadmissible to Canada is arguably a punitive sanction. Being deemed inadmissible can lead to deportation, meaning that a person who has not been convicted of a crime could find themselves facing the harshest measure under the IRPA. These harsh consequences could lead to a refugee facing deportation back to the country they originally had to flee from. So, the Supreme Court was called upon to decide whether section 34(1)(e) was to have a wide or narrow interpretation.
The IAD Ignored the Context in Which the Statute was Enacted
If you read section 34, you’ll see that subsection (e) is an outlier. The other subsections deal with things like espionage, terrorism, and subversion of governments. Subsection (1)(e) is the broadest of all of the subsections. The other subsections all have a direct nexus with national security. Subsection 34(1)(e) is designed to capture conduct that does not rise to the level of criminality, but no less endangers Canadians or impairs Canada’s security. The situations that subsection 34(1)(e) is designed to address are, for example, reasonable grounds for belief someone is joining a terrorist organization. Not bar fights.
The Appellants made important observations regarding the statutory context of subsection 34(1)(e) in their factum and oral submissions. This subsection was enacted into law in 1976. This year is significant as it is the year of the Montreal Summer Olympics. Hansard records regarding section 34 of the IRPA show that the provision was intended to thwart terrorism and address other security risks arising out of hosting the Olympics. There was a terrorist attack at the previous 1972 Summer Games in Munich, and Canada had turned its mind to preventing a similar situation. This was before the 2001 9/11 terrorist attacks and Canada’s modern legal framework against terrorism. The section was not enacted to address ordinary violence in Canada, but rather security risks arising from welcoming an influx of immigrants for the Olympics. This context is key to interpreting section 34.
The Modern Approach to statutory interpretation demands courts and administrative decision makers consider Parliament’s intention in statutory interpretation. Parliament enacted section 34 to address security risks in Canada’s immigration system, and this is key to properly interpreting subsection 34(1)(e). Hansard records and the surrounding subsections of 34(1)(e) offer important statutory context of Parliament’s intention for its interpretation. Parliament was not intending to address all violent conduct when they enacted section 34. They were intending to maintain Canada’s security while hosting the world for the Olympics, and into the future. Thus, reason would dictate that subsection 34(1)(e) requires conduct to have a link to national security.
The IAD Lost Track of the Scheme of the Act
The IRPA’s inadmissibility framework deals with violent conduct that rises to the level of criminality at section 36. Interpreting section 34(1)(e) to require a nexus with national security does not mean that violent conduct will not have immigration consequences for those who are proven guilty in a court of law. Rather, it means that the procedural safeguards built into the criminal justice system are followed before the immigration consequences can apply.
Section 34(1)(e) is carefully written to capture conduct that endangers Canadians but could not be proven in a court of law. For example, foreign nationals planning to attack government offices may be impossible to prove criminally but is nonetheless conduct deserving of immigration consequences such as deportation if they are within Canada. This is an example of conduct that has a connection with national security, that a reasonable interpretation of section 34 demands.
The Supreme Court’s decision means that violent conduct that does not have a nexus with national security is treated fairly under the law. Section 36 means that anyone convicted of a serious offence in Canada will be deemed inadmissible. This captures violent conduct that otherwise endangers Canadians, but it must be proven beyond a reasonable doubt before a finding of inadmissibility can apply. Interpreting section 34(1)(e) to not require a link to national security would fly in the face of the serious criminality aspects of the inadmissibility framework. Thus, it does not accord with the statutory scheme of the IRPA.
The IAD’s Interpretation Would Violate International Law
Canada has adopted certain international legal doctrines into domestic law through section 3(3)(f) of the IRPA. This includes the Convention on the Status of the Refugee, which contains Article 33 or the Principle of Non-refoulement. As mentioned above, the IAD’s interpretation as articulated would mean that a refugee, who has not been convicted of an offence, could face deportation back to the country they fled. This is precisely what the principle of non-refoulement is designed to address.
Courts have an obligation to overturn administrative decisions that have absurd results. It would be absurd to deport a vulnerable individual back to danger, and Canada would violate its international obligations that it has adopted into domestic law. To interpret section 34(1)(e) in a manner that violates the principle of non-refoulement would contradict the objectives of the IRPA as articulated in section3(3)(f). Thus, the Supreme Court held that the IAD’s decision was unreasonable. Section 34(1)(e) can only apply in limited circumstances where there is a nexus with national security, and to interpret it otherwise is unreasonable. The Mason decision shows how international law has become a constraint on domestic decision makers and represents an important protection for refugees in Canada.
Conclusion
The latest Supreme Court decision means that section 34(1)(e) of the IRPA only applies to conduct that is linked to national security. The IAD’s interpretation that it applied to any violent conduct was unreasonable because it ignored the context of the provision, the scheme of the Act, and would violate Canada’s international legal obligations. It means that if you are a permanent resident or foreign national within Canada you can only be deemed inadmissible for violent conduct if you are convicted of a criminal offence pursuant to section 36. Inadmissibility cannot be found from simple suspicion arising from any charge without conviction unless it implicates Canada’s security. This is an important legal precedent interpreting a critical component of Canada’s inadmissibility framework.
If you are a permanent resident in Canada and facing criminal charges, you may be facing immigration consequences as well. If this applies to you, give Camino Law Group’s office a call today. Our lawyers are here to help.
Key Takeaways
The latest Supreme Court decision clarified the proper interpretation of an important aspect of Canada’s inadmissibility framework.
Section 34(1)(e) of the IRPA only applies to conduct that has a nexus with national security.
Permanent residents and foreign nationals can only be deemed inadmissible for criminal conduct after a conviction unless the conduct implicates national security.
If you are a newcomer to Canada and have been accused or convicted of a crime, there may be immigration consequences.
If you are in immigration detention or have been convicted of a crime, call Camino Law Group’s office today. Our lawyers offer quality legal representation that is within reach.
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