Lorne Waldman

The Supreme Court of Canada allowed Ms. Pepa’s appeal from Federal Court of Appeal and Federal Court judgments that upheld an Immigration Appeal Division ruling denying jurisdiction under s. 63(2) of the Immigration and Refugee Protection Act.

A majority held the IAD’s interpretation was unreasonable and concluded the only reasonable interpretation is that visa-holder status for this appeal right is assessed at the time of arrival in Canada, then remitted the matter to the IAD for determination of the removal-order appeal.

Rowe J. agreed the decision was unreasonable but would have remitted without declaring a single reasonable interpretation, while Côté and O’Bonsawin JJ. would have dismissed the appeal.

Consolidated immigration appeals considered whether inadmissibility for people smuggling under s. 37(1)(b) of the Immigration and Refugee Protection Act captures all assistance to undocumented migrants or is limited by organized transnational criminality and material benefit.

The Court held the provision applies only where conduct furthers illegal entry for direct or indirect financial or other material benefit in the context of transnational organized crime.

Humanitarian and mutual aid, including assistance among asylum-seekers in collective flight to safety, does not itself constitute people smuggling under this provision.

The prior inadmissibility determinations were based on an unreasonable statutory interpretation and were remitted for reconsideration on the proper legal test.

The Court dismissed an appeal challenging a refusal of ministerial relief from inadmissibility under s. 34(2) of the Immigration and Refugee Protection Act.

It held that reasonableness is the applicable standard of review for this discretionary decision and accepted an interpretation of national interest focused mainly on national security and public safety, while not excluding other relevant factors.

The Court found the Minister’s reasons intelligible and justified on the evidentiary record, including sustained contact with an organization found to have engaged in terrorism and credibility concerns.

It further held that procedural fairness was satisfied and any legitimate expectations from published guidelines were met.

The Minister’s decision was allowed to stand.