Supreme Court of Canada

Appeal Heard: November 29, 2022 Judgment Rendered: September 27, 2023 Docket: 39855

Parties

Between:

Earl Mason Appellant

v.

Minister of Citizenship and Immigration Respondent

— and —

Between:

Seifeslam Dleiow Appellant

v.

Minister of Citizenship and Immigration Respondent

— and —

Attorney General of Ontario, Attorney General of Saskatchewan, Canadian Council for Refugees, Canadian Association of Refugee Lawyers, Social Planning Council of Winnipeg, Canadian Muslim Lawyers Association, United Nations High Commissioner for Refugees, Amnesty International Canadian Section (English Speaking), Community & Legal Aid Services Program, Association québécoise des avocats et avocates en droit de l'immigration and Criminal Lawyers' Association (Ontario) Interveners

Indexed as: Mason v. Canada (Citizenship and Immigration)

2023 SCC 21

File No.: 39855.

2022: November 29; 2023: September 27.

Present: Wagner C.J. and Karakatsanis, Côté, Brown,* Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ.

Coram and Reasons

Reasons for Judgment: (paras. 1 to 123) Jamal J. (Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer and O'Bonsawin JJ. concurring)

Concurring Reasons: (paras. 124 to 189) Côté J.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

* Brown J. did not participate in the final disposition of the judgment.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Administrative law — Judicial review — Standard of review — Application of Vavilov framework to judicial review of administrative decisions involving question of statutory interpretation in immigration context — Standard of review applicable where serious question of general importance for appeal certified by Federal Court.

Immigration — Judicial review — Inadmissibility and removal — Foreign nationals found inadmissible on security grounds by administrative tribunal for engaging in acts of violence that would or might endanger the lives or safety of persons in Canada — Administrative tribunal interpreting statutory provision at issue as not requiring proof of conduct having nexus to national security or security of Canada — Applications for judicial review to Federal Court allowed but Federal Court of Appeal ruling that interpretation by administrative tribunal was reasonable — Whether standard of review properly applied by reviewing courts — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 34(1)(e).

Summary of Facts and Held

M and D are both foreign nationals in Canada. In 2012, M was charged with two counts of attempted murder and two counts of discharging a firearm following an argument with a man in a bar during which M fired a gun. The charges were eventually stayed because of delay. In unrelated incidents, D was alleged to have engaged in acts of violence against intimate partners and other persons. Some of the criminal charges flowing from these incidents were stayed and he pled guilty to three charges and received a conditional discharge.

Following these incidents, inadmissibility reports were prepared alleging that both M and D were inadmissible to Canada on "security grounds" under s. 34(1)(e) of the Immigration and Refugee Protection Act ("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". The reports were referred to the Immigration Division ("ID") for admissibility hearings. It was not alleged that either M or D engaged in acts of violence with a link to national security or the security of Canada. In M's case, the ID ruled that a "security ground" 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. As M's alleged conduct lacked any element that would elevate it to security grounds, s. 34(1)(e) could not apply. The Immigration Appeal Division ("IAD"), however, allowed the Minister's appeal and concluded that inadmissibility under s. 34(1)(e) related 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. In D's case, the ID followed the IAD's interpretation of s. 34(1)(e) in M's case, concluded that D was inadmissible, and issued a deportation order.

The Federal Court allowed M and D's applications for judicial review, ruling that it was unreasonable to interpret s. 34(1)(e) as applying to acts of violence without a nexus to national security. In both cases, the Federal Court certified, under s. 74(d) of the IRPA, 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"? The Federal Court of Appeal allowed the Minister's appeals, holding that the IAD in M's case and ID in D's case had reasonably interpreted s. 34(1)(e) as not requiring a nexus to national security or the security of Canada.

Held: The appeals should be allowed. In M's appeal, the IAD decision should be quashed. In D's appeal, the ID decision and deportation order should be quashed.

Per Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ.: Applying the Vavilov framework to the instant appeals, the appropriate standard of review of the administrative decisions 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. In the instant cases, both administrative decisions were unreasonable. 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.

In Vavilov, the Court established a presumption that when a court reviews the merits of an administrative decision, the standard of review is reasonableness. This presumption is rebutted in two types of situations — where the legislature has indicated that it intends a different standard or set of standards to apply or where the rule of law requires that the standard of correctness be applied — which together provide six categories of correctness review. The first situation 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. With respect to the second situation, Vavilov sets 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. A sixth category of correctness review was recognized by the Court in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30: when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute.

None of the established exceptions to the presumption of reasonableness review applies in the instant cases: the legislature has not explicitly prescribed the standard of review or provided a statutory appeal mechanism from an administrative decision to a court, and 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. Although it 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.

The certified question regime under s. 74(d) of the IRPA does not displace the presumption of reasonableness review and warrant a new category of correctness. 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. First, 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 an application for judicial review. The certified question procedure plays a gatekeeping role by requiring that the matter meet a threshold of importance to merit an appeal to the Federal Court of Appeal. 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. 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.

Second, the certification of a serious question of general importance does not require correctness review by the Federal Court of Appeal or the Supreme Court. As a matter of precedent, the Court has concluded in the immigration context that despite the presence of a certified question, the standard of review is reasonableness. Vavilov does not require that conclusion to be revisited. Certification of a question does not signal that the legislature intended that appellate courts apply correctness review. The Federal Court of Appeal's task in an appeal from a decision of the Federal Court in an application for judicial review is to determine whether the Federal Court identified the appropriate standard of review and then to decide whether it applied that standard properly. 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. Moreover, recognizing a new correctness category in the instant cases 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.

Vavilov provided extensive guidance on conducting reasonableness review of administrative decisions. Although the Federal Court in M's case did not have the benefit of Vavilov, the Federal Court of Appeal did, and it strayed from Vavilov's methodology of reasonableness review. It grafted onto Vavilov an extra step of conducting a preliminary analysis of the text, context, and purpose of the legislation to understand the lay of the land before examining the administrative decisions. This preliminary step is inconsistent with Vavilov. 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.

The administrative decisions under review did not reasonably interpret s. 34(1)(e) of the IRPA by not requiring a nexus with national security or the security of Canada. Vavilov instructed that a reviewing court should conduct reasonableness review mindful of the impact of the decision on the affected individual. According to the principle of responsive justification, 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. In the instant cases, the interpretation of s. 34(1)(e) will affect whether two individuals could be deported from Canada. The IAD's reasons had to reflect these stakes. However, the IAD's reasons in M's case failed to address critical points of statutory context and the broad consequences of its interpretation of s. 34(1)(e) that were raised by M. These omissions were significant, involved a failure of responsive justification and, cumulatively, rendered the IAD's decision unreasonable. The IAD also failed to interpret and apply s. 34(1)(e) in compliance with Canada's obligation of non-refoulement under Article 33(1) of the 1951 Convention Relating to the Status of Refugees, contrary to the express direction in s. 3(3)(f) of the IRPA that it must do so. The ID's decision in D's case, which simply followed the IAD's interpretation of s. 34(1)(e) of the IRPA in M's case, was unreasonable for the same reasons.

Cumulatively, the relevant legal constraints 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. Section 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. Because the Minister has not alleged that M or D 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.

Per Côté J.: There is agreement with the majority's disposition of the appeals, its finding that the IAD's interpretation of s. 34(1)(e) was unreasonable and its determination that inadmissibility under s. 34(1)(e) of the IRPA requires a nexus between the relevant act of violence and with national security or the security of Canada. However, the IAD's interpretation of s. 34(1)(e) should be reviewed on a standard of correctness.

Section 74(d) of the IRPA provides for an exceptional appeal to the Federal Court of Appeal for legal questions certified as serious questions 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. Questions certified under s. 74(d) will, by definition, have implications beyond the immediate parties and raise issues of broad significance within Canada's immigration and refugee protection scheme.

In Vavilov, the Court held that the categories of correctness review are not closed but that reviewing courts should only derogate from the presumption of reasonableness review where required by a clear indication of 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). The presumption of reasonableness review from Vavilov does not apply where the legislature expressly involves the court in the administrative scheme. To say that Vavilov is determinative and that the standard of review for certified questions is reasonableness would contradict the Vavilov framework itself.

To be consistent with the principles and framework set out in Vavilov, a new category of correctness review should be recognized: when appellate courts decide a serious question of general importance certified under s. 74(d) of the IRPA. For the certified question regime to be given its explicitly legislated scope, appellate courts must be able to answer them correctly. Reasonableness review of certified questions under the IRPA is inconsistent with both Parliament's intent and the rule of law. The rule of law requires — and Parliament intended for appellate courts to provide — a singular, determinate and final answer to a question certified as a serious question of general importance under the IRPA. Even a robust form of reasonableness review may be insufficient to guard against the risk, and the consequences, of arbitrariness. By definition, certified questions transcend the interests of the parties and raise issues of broad significance and general importance within Canada's immigration and refugee protection scheme. These are the exact types of questions for which the rule of law demands consistent and definitive answers — and for which the risk of arbitrariness is unacceptable. 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. 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 these serious questions of general importance. The certified question regime would be incoherent if the standard of review were anything other than correctness.

The IAD's interpretation of s. 34(1)(e) was unreasonable and inadmissibility under s. 34(1)(e) requires a nexus between the relevant act of violence and with national security or the security of Canada. The IAD's interpretation 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. Parliament did not intend for appellate courts to defer to reasonable but legally incorrect answers to this or other certified questions. It remains the task of administrative decision makers under the IRPA to apply this interpretation of s. 34(1)(e) going forward, including determining which acts of violence may indeed qualify as a threat to national security or the security of Canada.

Cases Cited

By Jamal J.

Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; considered: Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281; referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Northern Regional Health Authority v. Horrocks, 2021 SCC 42; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674; Canada (Immigration and Citizenship) v. Laing, 2021 FCA 194; Canada (Public Safety and Emergency Preparedness) v. XY, 2022 FCA 113, 89 Imm. L.R. (4th) 173; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, 468 D.L.R. (4th) 358; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770; Delios v. Canada (Attorney General), 2015 FCA 117, 100 Admin. L.R. (5th) 301; Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; X (Re); El Werfalli v. Canada (Public Safety and Emergency Preparedness), 2013 FC 612, [2014] 4 F.C.R. 673; Fuentes v. Canada (Minister of Citizenship and Immigration), 2003 FCT 379, [2003] 4 F.C. 249; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704; de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; Prosecutor v. Germain Katanga, ICC-01/04-01/07, 1 October 2013; Zaoui v. Attorney-General (No. 2), [2005] 1 N.Z.L.R. 690; Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17; G. v. G., [2021] UKSC 9, [2022] A.C. 544.

By Côté J.

Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30; considered: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289; Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, 468 D.L.R. (4th) 358; X (Re); referred to: Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706; Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704; Vavilov v. Canada (Citizenship and Immigration), 2017 FCA 132, [2018] 3 F.C.R. 75; Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, [2015] 1 F.C.R. 335; Huruglica v. Canada (Citizenship and Immigration), 2016 FCA 93, [2016] 4 F.C.R. 157; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; Canada (Immigration and Citizenship) v. Laing, 2021 FCA 194; Canada (Public Safety and Emergency Preparedness) v. XY, 2022 FCA 113, 89 Imm. L.R. (4th) 173; Mudrak v. Canada (Minister of Citizenship and Immigration), 2016 FCA 178, 43 Imm. L.R. (4th) 199; Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; Moumdjian v. Canada (Security Intelligence Review Committee), [1999] 4 F.C. 624; Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174.

Statutes and Regulations Cited

Citizenship Act, R.S.C. 1985, c. C-29, s. 10.5(1).

Criminal Records Act, R.S.C. 1985, c. C-47.

Immigration Act, R.S.C. 1985, c. I-2, s. 19(1)(g).

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 2(1) "foreign national", 3(2)(b), (3)(f), Part 1, 25(1), Division 4, 33, 34 to 42, 42.1(1), 64(1), 72(1), 74(d), 96, 97, 112, 113(d)(i), (ii), 114(1), 115.

Young Offenders Act, R.S.C. 1985, c. Y-1.

Youth Criminal Justice Act, S.C. 2002, c. 1.

Treaties and Other International Instruments

Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, Articles 1, 33, 42.

Protocol Relating to the Status of Refugees, Can. T.S. 1969 No. 29, Article 1.

Authors Cited

Canada. Citizenship and Immigration Canada. Bill C-11: Clause by Clause Analysis. Ottawa, September 2001.

Daly, Paul. Certified Questions, References and Reasonableness: Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, April 8, 2022 (online: https://www.administrativelawmatters.com/blog/2022/04/08/certified-questions-references-and-reasonableness-canada-citizenship-and-immigration-v-galindo-camayo-2022-fca-50/; archived version: https://scc-csc.ca/cso-dce/2023SCC-CSC21_1_eng.pdf).

Daly, Paul. "Unresolved Issues after Vavilov" (2022), 85 Sask. L. Rev. 89.

Daly, Paul. "Vavilov and the Culture of Justification in Contemporary Administrative Law" (2021), 100 S.C.L.R. (2d) 279.

Heckman, Gerald, and Amar 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.

Lambert, Hélène. "Customary Refugee Law", in Cathryn Costello, Michelle Foster and Jane McAdam, eds., The Oxford Handbook of International Refugee Law. New York: Oxford University Press, 2021, 240.

Lauterpacht, Sir Elihu, and Daniel Bethlehem. "The scope and content of the principle of non-refoulement: Opinion", in Erika Feller, Volker Türk and Frances Nicholson, eds., Refugee Protection in International Law: UNHCR's Global Consultations on International Protection. New York: Cambridge University Press, 2003, 87.

Liew, Jamie Chai Yun. "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.

Macklin, Audrey. "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.

Mullan, David. "Reasonableness Review Post-Vavilov: An 'Encomium for Correctness' or Deference As Usual?" (2021), 23 C.L.E.L.J. 189.

Popescu, Monica. "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.

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. Geneva, 2007.

Appeal History

APPEAL from a judgment of the Federal Court of Appeal (Stratas, Rennie and Mactavish JJ.A.), 2021 FCA 156, [2022] 1 F.C.R. 3, 84 Imm. L.R. (4th) 49, [2021] F.C.J. No. 811 (QL), 2021 CarswellNat 2818 (WL), setting aside a decision of Grammond J., 2019 FC 1251, [2020] 2 F.C.R. 3, 71 Imm. L.R. (4th) 292, [2019] F.C.J. No. 1127 (QL), 2019 CarswellNat 5134 (WL), allowing an application for judicial review of a decision of the Immigration and Refugee Board of Canada (Immigration Appeal Division), [2019] I.A.D.D. No. 329 (QL), 2019 CarswellNat 2865 (WL). Appeal allowed.

APPEAL from a judgment of the Federal Court of Appeal (Stratas, Rennie and Mactavish JJ.A.), 2021 FCA 156, [2022] 1 F.C.R. 3, 84 Imm. L.R. (4th) 49, [2021] F.C.J. No. 811 (QL), 2021 CarswellNat 2818 (WL), setting aside a decision of Barnes J., 2020 FC 59, [2020] F.C.J. No. 40 (QL), 2020 CarswellNat 63 (WL), allowing an application for judicial review of a decision of the Immigration and Refugee Board of Canada (Immigration Division), [2019] I.D.D. No. 23 (QL), 2019 CarswellNat 9922 (WL). Appeal allowed.

Counsel

Erica J. Olmstead, Molly Joeck and Aidan C. Campbell, for the appellant Earl Mason.

Robert J. Kincaid, for the appellant Seifeslam Dleiow.

Michael H. Morris and BJ Wray, for the respondent.

Judie Im and Susan Keenan, for the intervener the Attorney General of Ontario.

Johnna Van Parys and Laura Mazenc, for the intervener the Attorney General of Saskatchewan.

Prasanna Balasundaram, Barbara Jackman and Asiya Hirji, for the intervener the Canadian Council for Refugees.

Jacqueline Swaisland, Paul Daly, Anthony Navaneelan and Jonathan Porter, for the intervener the Canadian Association of Refugee Lawyers.

Brandon Barnes Trickett and David Thiessen, for the intervener the Social Planning Council of Winnipeg.

Naseem Mithoowani and Hanaa Al Sharief, for the intervener the Canadian Muslim Lawyers Association.

Aviva Basman and Alyssa Manning, for the intervener the United Nations High Commissioner for Refugees.

Dahlia Shuhaibar, for the intervener Amnesty International Canadian Section (English Speaking).

Subodh Bharati, Amy Mayor and Scarlet Smith, for the intervener the Community & Legal Aid Services Program.

Guillaume Cliche-Rivard, for the intervener Association québécoise des avocats et avocates en droit de l'immigration.

Kevin Westell and Frances Mahon, for the intervener the Criminal Lawyers' Association (Ontario).

Reasons for Judgment

The judgment of Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O'Bonsawin JJ. was delivered by

Jamal J. —

I. Overview

[ 1 ] 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.

[ 2 ] The 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.

[ 3 ] 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.

[ 4 ] The 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.

[ 5 ] 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.

[ 6 ] Mr. 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?

[ 7 ] In 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).

[ 8 ] 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).

[ 9 ] Applying 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.

[ 10 ] 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.

[ 11 ] In 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.

[ 12 ] As 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

[ 13 ] 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.

[ 14 ] The 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.

[ 15 ] 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).

[ 16 ] In 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

[ 17 ] 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.

[ 18 ] In 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)

[ 19 ] 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)

[ 20 ] The 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)

[ 21 ] 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.)

[ 22 ] The 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.

[ 23 ] 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.

[ 24 ] 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.

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;

(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.

[ 25 ] The 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, holding that Mr. Mason was not inadmissible under s. 34(1)(e).

[ 26 ] The 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.)

[ 27 ] 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 deportation order, and certified the same 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)

[ 28 ] The 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) of the IRPA as not requiring a nexus to national security or the security of Canada.

[ 29 ] The 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 there is a "risk" that when reviewing courts apply reasonableness review to administrative interpretations of statutes, they may "unknowingly . . . slide into correctness review" (para. 10). To guard against that risk, the Court of Appeal concluded that it was appropriate to start by "conducting a preliminary analysis of the text, context, and purpose of s. 34(1)(e) of the IRPA to get the lay of the land", before examining the administrative decisions (para. 15).

[ 30 ] 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 IAD's decision (paras. 43 and 47). The court held that the Federal Court had engaged in disguised correctness review by elevating the "structural argument" about s. 36 of the IRPA to a "knock-out punch" (para. 56).

[ 31 ] 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. The 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" (para. 74).

[ 32 ] The 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, and that several factors pointed in different directions (para. 80). Overall, the Court of Appeal determined that the IAD's interpretation was one of a range of reasonable interpretations, and that the same was true of the ID's decision, which followed the IAD's interpretation in Mr. Dleiow's case.

[ 33 ] In 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".

IV. Issues

[ 34 ] These 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

[ 35 ] In 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 determine whether the administrative decisions under review were reasonable.

A. The Standard of Review

[ 36 ] 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" (Vavilov, at para. 190, per Abella and Karakatsanis JJ., concurring in the result).

[ 37 ] 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 submit that the standard of review for serious questions of general importance certified for appeal under s. 74(d) of the IRPA is correctness.

[ 38 ] 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 a presumption that the standard of review of administrative decisions is reasonableness; (2) no established exception to the presumption applies in these cases; and (3) the certified question regime under the IRPA does not displace the presumption and warrant a new category of correctness.

(1) The Standard of Review Is Presumptively Reasonableness

[ 39 ] In 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 situations: (1) where the legislature has indicated that it intends a different standard to apply; or (2) where the rule of law requires that the standard of correctness be applied (Vavilov, at paras. 10 and 17).

[ 40 ] 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 (Vavilov, at para. 17).

[ 41 ] As 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 (Vavilov, at para. 17).

[ 42 ] At 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 (Vavilov, at para. 17). The Court has since recognized a sixth category: when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute (Society of Composers, at para. 2).

[ 43 ] 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 review would undermine legislative intent or the rule of law in a manner analogous to the existing correctness categories" (para. 70).

[ 44 ] The 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, thereby promoting the rule of law by ensuring that those affected by administrative decisions can predict the standard that will be applied to those decisions (Vavilov, at paras. 30 and 45).

(2) No Established Exception to the Presumption Applies

[ 45 ] None of the established exceptions to the presumption of reasonableness review applies in these cases.

[ 46 ] 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 and the Federal Court of Appeal by way of judicial review under s. 72(1) of the IRPA, not by way of a statutory appeal from the administrative decisions. The Federal Court conducted a judicial review of the administrative decisions on an application, and the subsequent appeal to the Federal Court of Appeal was from the Federal Court's judicial review decisions, not directly from the administrative decisions.

[ 47 ] 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" (Vavilov, at para. 59). This Court described general questions of law of central importance to the legal system as a whole as those that "affect the legal system as a whole", "have legal implications for many other statutes", "have implications for multiple administrative regimes", or "affect other institutions of government" (Vavilov, at paras. 58-60). The proper interpretation of s. 34(1)(e) does not meet any of these criteria. Although it 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).

(3) The Certified Question Regime Under the IRPA Does Not Displace the Presumption

[ 48 ] 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 does not affect the standard of review applied by the Federal Court itself; the certification of a question does not require correctness review by the Federal Court of Appeal or this Court; and recognizing a new correctness category on the basis of the certified question regime would conflict with Vavilov's goal of simplifying the standard of review framework.

[ 49 ] 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 an application for judicial review. The certified question procedure plays a gatekeeping role by requiring that the matter meet a threshold of importance to merit an appeal to the Federal Court of Appeal. 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. Thus, the certification of a question under s. 74(d) does not alter the Federal Court's task under s. 72(1) of the IRPA: to conduct a judicial review of the administrative decision, applying the appropriate standard of review.

[ 50 ] 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 provide for an appeal from administrative decisions, or because of the rule of law.

[ 51 ] 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). This Court's statement in Kanthasamy was made after careful consideration of the standard of review, even in the context of a certified question. Consistent with this Court's statement in Kanthasamy, the standard of review for the administrative decisions in these cases is reasonableness.

[ 52 ] 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 is analogous to s. 74(d) of the IRPA. In Vavilov, this Court did not create a new category of correctness review based on the certified question regime; to the contrary, it applied reasonableness review to the administrative decision at issue. This undermines the submission that a new category of correctness should be recognized in the context of certified questions under the IRPA.

[ 53 ] Finally, 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 (Vavilov, at paras. 7-10).

(4) Conclusion

[ 54 ] 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

[ 55 ] I 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 then applies that guidance to the two administrative decisions at issue. The following section then applies reasonableness review to the two administrative decisions at issue.

(1) Vavilov's Guidance on Reasonableness Review of Administrative Decisions

[ 56 ] Vavilov 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

[ 57 ] 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

[ 58 ] Vavilov 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]here reasons are provided, . . . the reviewing court must begin its analysis of the merits of the administrative decision by examining the reasons provided by the decision maker" (para. 84). A reviewing court must assess whether the administrative decision, "including both the outcome and the reasoning process, was unreasonable" (para. 83).

[ 59 ] 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). Reasons "demonstrate that the administrative decision maker has actually considered the matter before it, thereby allowing parties to assess whether they wish to seek judicial review" and "allow for effective judicial review" (para. 95).

[ 60 ] 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.

[ 61 ] 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 that the court must read the reasons "in light of the history and context of the proceedings" and "in conjunction with the record before the decision maker" (Vavilov, at paras. 91, 94, and 96). "Administrative decision makers are not required to . . . make explicit every finding or conclusion in the decision" (para. 128). As well, "a reviewing court should not refuse to consider an argument that was not explicitly addressed in the reasoning of the decision maker, when the argument is relevant to the decision's justification" (para. 96), and "[a]n administrative decision maker's rationale for a particular conclusion may be implicit in a decision, without being expressly stated" (para. 123).

[ 62 ] 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). The court should not simply substitute its own interpretation for that of the decision maker, or conclude that a decision is unreasonable merely because the reviewing court disagrees with the decision maker's interpretation of a statute.

[ 63 ] 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, reasonableness review is "a robust form of review" (para. 13).

(c) Indicators of Unreasonableness

[ 64 ] Vavilov 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 in light of the legal and factual constraints bearing on the decision (paras. 101 and 105).

####### (i) Failures of Rationality in the Reasoning Process

[ 65 ] A 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 contains reasoning that is "so internally inconsistent or incoherent that it cannot stand" (Vavilov, at paras. 102-4).

####### (ii) Failures of Justification in Light of the Legal and Factual Constraints

[ 66 ] 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 it" (Vavilov, at para. 105). These legal and factual constraints on the decision maker include "the governing statutory scheme", "the principles of statutory interpretation", "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" (Vavilov, at paras. 106-36).

1. The Governing Statutory Scheme

[ 67 ] 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" (Vavilov, at para. 108). The decision maker's interpretation must be consistent with "the words of the provision 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" (para. 118, quoting Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21). An interpretation that would "frustrate the Act's purpose or undermine its overall scheme" will be unreasonable (Vavilov, at para. 108).

2. The Principles of Statutory Interpretation

[ 68 ] As 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 answer would be'" (Vavilov, at para. 116). Rather, the court must consider whether the administrative decision maker's interpretation is one that the statutory provision can reasonably bear (para. 116).

[ 69 ] 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 requires that statutory provisions "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" (para. 118, quoting Rizzo & Rizzo Shoes, at para. 21).

[ 70 ] 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 it "cannot give effect to an interpretation that is inconsistent with the scheme and purpose of the Act" (Vavilov, at para. 119).

[ 71 ] 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 a single reasonable answer to a broader question" (Vavilov, at para. 124). In such a case, the court will "confirm that the decision is indeed consistent with that interpretation, or find that it is not" (para. 124).

3. Relevant Statutory Law, Common Law, and International Law

[ 72 ] Statutory 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 ignores or fails to engage with "the relevant legal constraints binding on the decision maker" (para. 108). This includes the duty of an administrative decision maker to interpret IRPA consistently with Canada's international law obligations, which Parliament has expressly required by s. 3(3)(f) of the IRPA.

4. The Evidence and Facts Before the Decision Maker

[ 73 ] 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 unreasonably based on a factual misapprehension.

5. The Submissions of the Parties

[ 74 ] An 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 (para. 127). A decision maker's failure to engage with a party's submissions may result in the decision being unreasonable if the submissions were central to the party's case and are not "implicitly addressed" or captured by the decision (paras. 127-28).

6. The Past Practices and Decisions of the Administrative Body

[ 75 ] Administrative 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 precedent. Divergent interpretations of the same statutory provision may undermine the rule of law where they lead to different outcomes for similarly situated persons.

7. The Potential Impact of the Decision on the Affected Individual

[ 76 ] 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 more severe the impact, the more detailed and specific the reasoning must be. This principle, sometimes called "responsive justification", requires decision makers to respond to the core submissions of the parties where those submissions raise points of central importance to the outcome.

[ 77 ] Having 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

[ 78 ] The 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. There is no concern about the Federal Court's methodology.

[ 79 ] 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 s. 34(1)(e) of the IRPA to get the lay of the land", before examining the administrative decisions (para. 15). This preliminary step is inconsistent with Vavilov. Vavilov is clear that a reviewing court must start its analysis with the reasons of the administrative decision maker (paras. 83-84). Starting with its own perception of the merits may lead a court to slip into correctness review — which is precisely what Vavilov sought to prevent.

C. Were the Administrative Decisions Reasonable?

[ 80 ] I 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.

[ 81 ] 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 (para. 133). The IAD's interpretation of s. 34(1)(e) has affected Mr. Mason, who faced a potential deportation order to Saint Lucia, where he has not resided for over a decade, and Mr. Dleiow, who faces deportation to Libya, where he may be at risk. As the stakes for these individuals are high, it is important that the IAD's reasons reflect those stakes.

[ 82 ] I 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 whether those reasons are reasonable.

(1) The IAD's Reasons in Mr. Mason's Case

[ 83 ] 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 this preliminary question of law against the ID's earlier decision in Mr. Mason's case that s. 34(1)(e) requires a nexus to the security of Canada. The IAD's interpretation of s. 34(1)(e) was based on several propositions.

• 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. 18, quoting Rizzo & Rizzo Shoes, 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 rest of the statute and the legislation as a whole" (para. 20).

• In at least one prior decision, X (Re)), in which a foreign national allegedly assaulted his former girlfriends in Canada but was not convicted of any offence, the ID had concluded that such conduct could not ground inadmissibility under s. 34(1)(e). However, the IAD declined to follow this decision and concluded that it was not binding or persuasive.

• 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. 16, and 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). 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

[ 84 ] Plainly, 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 IRPA; considered the dictionary definition of "security"; and examined obiter dicta in prior cases to understand how the phrase "acts of violence" had been interpreted.

[ 85 ] 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: (a) two significant points of statutory context; (b) the potentially broad consequences of the IAD's interpretation; and (c) the constraints imposed by international law on the IAD's interpretation of s. 34(1)(e).

(a) Failure to Address Two Significant Points of Statutory Context

[ 86 ] The 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.

[ 87 ] First, 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 of the IRPA is narrower than the relief available for inadmissibility based on criminality under s. 36 of the IRPA. He argued that this distinction in the relief available showed that Parliament treats inadmissibility under s. 34 as a more serious form of inadmissibility than inadmissibility under s. 36.

[ 88 ] 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 grant ministerial relief to a person found inadmissible under s. 34 "if satisfied that it is not contrary to the national interest" (IRPA, s. 42.1(1)). By contrast, if a permanent resident or foreign national is inadmissible for criminality under s. 36, the Minister of Citizenship and Immigration may grant relief "if satisfied that it is justified by humanitarian and compassionate considerations" (IRPA, s. 25(1)).

[ 89 ] Here, 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 through s. 42.1, not through s. 25 (IRPA). Since he was not convicted of any offence, the more lenient s. 36 would not apply to him even if his conduct would otherwise qualify as criminality under that provision. He could seek relief only on the ground that relief is "not contrary to the national interest" — a more demanding standard than the humanitarian and compassionate standard under s. 25.

[ 90 ] 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, this reflects Parliament's intention that s. 34 is a more serious form of inadmissibility that requires a nexus to national security or the security of Canada. The IAD's interpretation — which would capture conduct falling well below the threshold for criminality — would produce the anomalous result that persons inadmissible for acts that did not lead to criminal charges would be treated more harshly than those whose conduct constitutes criminal offences.

[ 91 ] The 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 IAD's interpretation of s. 34(1)(e). Under Vavilov, the IAD's reasons had to "meaningfully account for" this central argument raised by Mr. Mason (para. 127). The IAD's failure to do so was a significant omission in its responsive justification.

[ 92 ] Second, 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 in assessing claims under the IRPA's pre-removal risk assessment process, depending on whether the person is found inadmissible under ss. 34, 35, or 37 as opposed to s. 36.

[ 93 ] 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 status or temporary protection in Canada (IRPA, ss. 112 and 114(1)). In assessing the risk, the Minister must consider, among other things, different criteria depending on whether the person is inadmissible under ss. 34, 35, or 37 (danger to national security) or under s. 36 (danger to the public) (IRPA, s. 113(d)(i) and (ii)).

[ 94 ] Mr. 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, while conduct captured by ss. 34, 35, and 37 poses a danger to national security. This distinction is consistent with Mr. Mason's argument that s. 34(1)(e) requires a nexus to national security or the security of Canada.

[ 95 ] Again, 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 IAD's interpretation of s. 34(1)(e). Under Vavilov, the IAD's reasons had to "meaningfully account for" this central argument (para. 127). They did not.

[ 96 ] 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 "was alive to the overall context and purpose of the provision in question" and that there was "no specific omission in the IAD's consideration of the context" (para. 43). With respect, this is not supported by the record.

[ 97 ] I 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 these arguments in his written submissions to the IAD. The IAD's reasons do not address either of them.

(b) Failure to Address Potentially Broad Consequences

[ 98 ] 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 Mr. Mason submitted would undermine Parliament's intent.

[ 99 ] First, 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 prima facie make a person inadmissible on security grounds" and would make criminality under s. 36 of the IRPA irrelevant, since any conduct that could ground inadmissibility under s. 36 could also ground inadmissibility under s. 34(1)(e). The IAD's interpretation would effectively read the criminality provisions out of the IRPA as grounds for inadmissibility for acts of violence.

[ 100 ] 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 beyond ordinary personal safety" and as "capturing conduct that is a small subset" of what would constitute serious criminality under s. 36 of the IRPA (para. 41). The Court of Appeal relied on the following passage in the IAD's reasons:

. . . 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 standard. The purpose of the IRPA is to protect Canadians. 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)

[ 101 ] 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 supply reasons that were not provided" or to substitute its own reasoning for that of the decision maker in order to validate the decision (Vavilov, at para. 96; see also paras. 95-96). While I accept that the IAD said the conduct described in s. 34(1)(e) "is narrowly defined", it did not explain how the conduct is narrowly defined, other than stating that it is "anchored in terms of the danger posed to Canadians, not to criminal law". The IAD did not explain the limiting principle that would prevent s. 34(1)(e) from swallowing s. 36. As Mr. Mason pointed out in his submissions to the IAD, the IAD's reasoning did not explain what acts of violence would not be inadmissibility grounds on security grounds, other than ones that fall short of "endanger[ing] the lives or safety of persons in Canada".

[ 102 ] As 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 protections afforded to young persons under the IRPA. The Youth Criminal Justice Act, S.C. 2002, c. 1, and the Young Offenders Act, R.S.C. 1985, c. Y-1, protect young persons in the criminal justice system by, for example, restricting access to youth records. Under s. 36 of the IRPA, proof of a conviction is required for inadmissibility — and if the conviction is a young offender record, the IRPA will often not require it to be considered (IRPA, ss. 36(3)(e)-(f)). But under the IAD's interpretation of s. 34(1)(e), a young person's violent acts — not convictions, but acts — could render that person inadmissible even if their young offender records would normally be sealed. This would be a significant consequence.

[ 103 ] 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 is a further significant omission from the IAD's responsive justification.

(c) Failure to Address Constraints Imposed by International Law

[ 104 ] Finally, 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 who are not refugees to be exposed to the risk of refoulement contrary to Article 33(1) of the Refugee Convention, which Parliament has expressly stated in s. 3(3)(f) of the IRPA that the IRPA is to be construed and applied in conformity with.

[ 105 ] Vavilov 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 conform to Canada's international law obligations" (para. 114; see also para. 111).

[ 106 ] 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 in s. 3(3)(f) of the IRPA, which states that the IRPA "is to be construed and applied in a manner that . . . complies with international human rights instruments to which Canada is signatory". Section 3(3)(f) is an express parliamentary direction that the IRPA must be interpreted consistently with Canada's international law obligations. Where the IRPA is susceptible of two interpretations, only one of which is consistent with Canada's international obligations, that is the interpretation that must be adopted (Németh, at paras. 32-34).

[ 107 ] 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 through s. 115 (as I will elaborate below), states:

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.

[ 108 ] 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 return of an individual to a country where they would be at risk of persecution, torture, death or other serious harm" (Canadian Council for Refugees, at para. 37).

[ 109 ] The 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, Mr. Mason and Mr. Dleiow — who have not been found to have engaged in acts of violence relating to national security — could be issued a removal order even if they were entitled to protection under Article 33(1) of the Refugee Convention.

[ 110 ] 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 protection under the pre-removal risk assessment process (IRPA, ss. 112 and 114(1)), that process contains exceptions that do not align with the protections afforded under the Refugee Convention.

[ 111 ] As 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, as Parliament expressly directed in s. 3(3)(f) of the IRPA must not occur.

[ 112 ] 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 the most exceptional circumstances that a person will be returned to a country where they would face a risk to their life or safety". Sections 115(1) and (2) provide:

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 face a risk to their life or to a risk of 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 this sufficiently fulfils Canada's obligations under Article 33 of the Refugee Convention.

[ 113 ] 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 in some circumstances that are inconsistent with Canada's obligations under Article 33(1) of the Refugee Convention. The Article 33(2) exception to the non-refoulement obligation applies only if there are "reasonable grounds for regarding [the person] as a danger to the security of the country in which [they are]" or if "having been convicted by a final judgment of a particularly serious crime, [the person] constitutes a danger to the community of that country". By contrast, s. 115(2)(b) of the IRPA allows for refoulement when a person "inadmissible on grounds of security" poses a danger based on "the nature and severity of acts committed or of danger to the security of Canada". Under the IAD's interpretation of s. 34(1)(e), a person who engaged in acts of violence unconnected to national security could be deemed inadmissible on "security grounds", and the Minister could order their removal under s. 115(2)(b) even though Article 33(2) of the Refugee Convention would not permit refoulement in similar circumstances.

[ 114 ] 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 a "protected person" or "a Convention refugee by another country to which the person may be returned". Neither Mr. Mason nor Mr. Dleiow has received refugee protection in Canada or been recognized as a Convention refugee by another country. So neither of them would benefit from the protection of s. 115(1). However, if they were recognized as refugees or persons in need of protection after the IAD's interpretation of s. 34(1)(e) were applied to them, they could face exposure to the risk of non-refoulement contrary to Article 33(1) of the Refugee Convention even though Article 33(2) would not apply to them.

[ 115 ] That 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) of the IRPA insofar as that interpretation could subject persons to a risk of refoulement contrary to Article 33(1). The IAD's interpretation allows persons to be found inadmissible under s. 34(1)(e) on account of acts of violence unconnected to national security, and then to be removed even if they face risks akin to those of a refugee. Parliament has expressly mandated in s. 3(3)(f) that the IRPA be interpreted and applied consistently with Canada's international human rights obligations. The IAD ignored this express mandate. This omission rendered the IAD's decision unreasonable.

[ 116 ] The 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.

[ 117 ] 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

[ 118 ] The 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 raised in his written submissions to the IAD. This failure involved significant omissions from the IAD's responsive justification. The IAD also failed to address the legal constraints imposed by the Refugee Convention, which Parliament has expressly mandated must be considered. These failures cumulatively rendered the IAD's decision unreasonable.

[ 119 ] The ID's decision in Mr. Dleiow'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.

[ 120 ] 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 a reasonableness review that "the interplay of text, context and purpose leaves room for a single reasonable interpretation of the statutory provision, or a single reasonable answer to a broader question", in which case the reviewing court should confirm whether the administrative decision is consistent with that single reasonable interpretation (para. 124).

[ 121 ] 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. The IAD's and ID's interpretations of s. 34(1)(e) were unreasonable because they failed to acknowledge that the overwhelming weight of text, context, and purpose compels this conclusion. Section 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.

[ 122 ] As 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.

VI. Disposition

[ 123 ] 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, which found Mr. Mason not inadmissible under s. 34(1)(e). In Mr. Dleiow's appeal, I would quash the ID decision and deportation order.

Concurring Reasons

The following are the reasons delivered by

Côté J. —

I. Introduction

[ 124 ] I 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 national security or the security of Canada. However, I write separately because I disagree with my colleague's conclusion that the standard of review is reasonableness.

[ 125 ] In 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 either where the legislature expressly or implicitly indicates that a different standard applies or where the rule of law so requires (para. 17). In my view, the certified question regime under s. 74(d) of the IRPA signals legislative intent for correctness review and, additionally, the rule of law requires consistent and definitive answers to certified questions.

[ 126 ] 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). I agree. To be consistent with the principles and framework set out in Vavilov, I would recognize a new category of correctness review for certified questions under the IRPA.

[ 127 ] To 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. Despite my disagreement with my colleague on the standard of review, I agree that the IAD's interpretation of s. 34(1)(e) was unreasonable and that inadmissibility under s. 34(1)(e) requires a nexus to national security or the security of Canada.

II. Analysis

A. The Standard of Review for Certified Questions Under the IRPA Is Undecided Post-Vavilov

(1) Pre-Vavilov Jurisprudence

[ 128 ] 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 Immigration Act demanded correctness review because "s. 83(1) would be incoherent if the standard of review were anything other than correctness" (para. 43). The Court provided a definitive answer to the certified question.

[ 129 ] 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 Court was faced with the following certified question:

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 the [Convention on the Rights of the Child], must federal immigration authorities treat the best interests of the Canadian child as a primary consideration when assessing an applicant under s. 114(2) of the Immigration Act and the Immigration Regulations, 1978?"

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 [the officer] did not give this factor the attention it deserved given the significant interest at stake. [Citation omitted; para. 75.]

[ 130 ] 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 at issue was entitled to deference. The Court did not address the significance of the certified question on the standard of review.

[ 131 ] However, 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, and provided definitive answers to certified questions in Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, and B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704.

[ 132 ] 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). With respect, I disagree. Pre-Vavilov jurisprudence does not demonstrate a settled approach: rather, it shows a divergence in how this Court addressed the standard of review for certified questions.

[ 133 ] First, 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.

[ 134 ] 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. 73; Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, at para. 58; Ezokola, at para. 90; Febles, at paras. 3, 89-90; B010, at para. 78). In Kanthasamy, Abella J. appeared to be aware of this disconnect. She wrote, for the majority:

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 in order to find error rather than reading the decision as a whole. [para. 44 (emphasis added)]

[ 135 ] Following 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 a reasonableness or correctness standard. After reviewing the statutory text, context, and purpose, the Court answered the two certified questions definitively:

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 the maximum term available at the time of the commission of the offence?

— It refers to the maximum term of imprisonment available at the time of the commission of the offence. [para. 56]

[ 136 ] In 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 do not accept that Kanthasamy represents a settled or correct approach to the standard of review for certified questions under the IRPA.

[ 137 ] 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. 28). The question is not what approach the Court took in Kanthasamy; it is what approach is required under Vavilov.

(2) Vavilov

[ 138 ] In 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, and questions about jurisdictional boundaries between administrative bodies). Vavilov also did not foreclose the possibility of recognizing new categories of correctness review in "rare and exceptional circumstances" (para. 70).

[ 139 ] The 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 the certified 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 have diplomatic immunity? Answer: Yes. [para. 90]

[ 140 ] 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 applied reasonableness review to the Registrar's decision — but did not discuss the implications for the standard of review of the fact that the appeal reached the Federal Court of Appeal by way of a certified question.

[ 141 ] While 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.

[ 142 ] First, 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 was explicit" (para. 32). Vavilov did not explicitly address the standard of review for certified questions.

[ 143 ] 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, Mactavish J.A. lamented the "misfit between answering [a] certified question properly and conducting reasonableness review" (para. 37) and described the tension between certified questions and reasonableness review as "an unsatisfying situation" (para. 41).

[ 144 ] Second, 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 officers may be called upon to make decisions, many of which are time-sensitive. Certified questions are therefore a unique and important vehicle through which the Federal Court can ensure that legal issues of broad significance are decided definitively and consistently across the entire administrative regime.

[ 145 ] 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

[ 146 ] In 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 questions 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.

[ 147 ] 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 fall squarely within the second Vavilov category — statutory appeal mechanisms — and correctness review would apply without further analysis. My colleague rejects this conclusion by reasoning that statutory appeal mechanisms under Vavilov refer only to "statutory appeals from administrative decisions directly" (see para. 46). However, Vavilov reasoned as follows:

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, it is expressing its intent that the matter be decided by that decision maker in the first instance, in accordance with its enabling statute and relevant constraints.

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 correctness review. [paras. 46-47 (emphasis added)]

[ 148 ] 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 of the questions at issue (see para. 48). Unlike ordinary judicial review, the certified question regime expressly involves the courts in the administration of the IRPA — not merely to conduct judicial review, but to provide definitive answers to questions of law of general importance. This is precisely the scenario Vavilov described when it said that the presumption of reasonableness no longer applies when "the legislature expressly involves the court in the administrative scheme" (para. 47).

[ 149 ] 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. 52, per Abella J. (dissenting)), as seen, for example, in Galindo Camayo, at paras. 36-37. The Pushpanathan decision explains why this practice made sense — and why it is consistent with Parliament's intent:

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". This phrase signals that the legislature considers these questions to transcend the particular issues before the court and to have implications for the administration of justice broadly. [para. 43]

[ 150 ] The 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 in respect of the certified question. [para. 43]

[ 151 ] 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 wrong in law" (Pushpanathan, at para. 43). To give s. 74(d) its explicitly legislated scope, appellate courts must be permitted to substitute their own opinion in respect of certified questions.

[ 152 ] The 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. 37):

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. While the reviewing court, in the context of a judicial review, may be required to assess the reasonableness of an administrative decision maker's interpretation of a statute, the reviewing court is required to "correct" the certified question by providing a definitive answer to it. [para. 36]

[ 153 ] 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 certified questions is a reasonable one. [para. 38]

[ 154 ] This 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)

[ 155 ] 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. When Parliament asks whether an interpretation is "correct", the court must engage with that question, not redirect it.

[ 156 ] In 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 but incorrect interpretation? Under reasonableness review, that answer would have to be upheld, unless the reviewing court engaged in "disguised correctness review". But under the IAD's broader interpretation of s. 34(1)(e), it is possible for both sides to put forward reasonable interpretations — one requiring a national security nexus, and one not. If reasonableness allows a range of reasonable interpretations, a wrong answer could be upheld.

[ 157 ] In 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 on a correctness standard.

(2) The Rule of Law

[ 158 ] 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 by appellate courts.

(a) The Risk of Arbitrariness Is Unacceptable in This Context

[ 159 ] First, 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 stated that to be certified, the question must meet the following threshold:

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; Canada (Public Safety and Emergency Preparedness) v. XY, 2022 FCA 113, 89 Imm. L.R. (4th) 173, at para. 3.)

[ 160 ] A 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). Certified questions, by their very nature, raise issues of general importance that must be answered consistently. If the standard of review for certified questions were reasonableness, it would be possible for different administrative decision makers to adopt different interpretations of the same statutory provision, all of which could be "reasonable" — without any mechanism for correcting and settling the law definitively.

[ 161 ] 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 basis for correctness review, it did so because Vavilov recognized that administrative bodies have their own internal processes for addressing inconsistency:

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, at p. 800, this Court noted the importance of the internal administrative processes by which administrative bodies can address persistent inconsistency, and that to allow persistent discord to serve as a trigger for correctness review "would amount to the courts taking over from the administrative tribunal a function that the legislature intended to entrust to it". [para. 72 (emphasis added)]

[ 162 ] 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, are themselves the certified question mechanism under s. 74(d):

. . . 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 would then be required to resolve these disputes on further appeal. [Galindo Camayo, at para. 37]

[ 163 ] In 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 cannot be adequately managed by internal administrative processes, because those internal processes are precisely what produce the certified questions in the first place.

[ 164 ] 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)), but it is not acceptable where the consequences of the decision are as weighty as in this case — involving inadmissibility, deportation, and potential refoulement.

[ 165 ] 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 consistent and definitive answers. I agree. As Pushpanathan made clear, the certified question regime would be "incoherent" if the standard of review were anything other than correctness (para. 43). For certified questions to serve their legislative purpose, they must be answered definitively — not just reasonably.

[ 166 ] 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, in an identical situation, does not. This inconsistency is antithetical to the rule of law, which requires that like cases be treated alike.

[ 167 ] Relatedly, 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 is inherently fact- and record-specific, and may require applicants to obtain highly specialized expertise to challenge. Correctness review, by contrast, provides clearer and more consistent guidance to applicants and their counsel.

[ 168 ] While 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 Parliament has determined to be serious questions of general importance within Canada's immigration and refugee protection regime.

(b) Consequences for the Justice System as a Whole or Other Institutions of Government

[ 169 ] 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 consequences for other institutions of government.

[ 170 ] For 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":

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 is inadmissible on security grounds, on grounds of violating human or international rights, or on grounds of organized criminality — set out, as a ground for revoking citizenship, the inadmissibility that is relied on.

[ 171 ] 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 — one of the scenarios Society of Composers identified as warranting correctness review. If the proper interpretation of s. 34(1)(e) were to vary depending on whether it is being interpreted by a court or an administrative decision maker, this would create a troubling inconsistency within the legislative scheme.

[ 172 ] 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 refugee or refugee claimant, the proper interpretation of s. 34(1)(e) has implications for Canada's ability to comply with its non-refoulement obligations under the Refugee Convention — an issue of fundamental importance to Canada's international standing and its obligations to affected individuals.

[ 173 ] 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 the IRPA could affect the fairness of criminal proceedings:

[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 defence counsel to assess collateral consequences to discharge obligations to advise clients competently and fully. [R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 6]

[ 174 ] In 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 also mean that correctness review is necessary under the rule of law category in Vavilov.

[ 175 ] 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 and other administrative decision makers that do not involve certified questions would continue to be reviewed on a standard of reasonableness. The new correctness category I propose applies only to certified questions — a limited subset of legal issues that Parliament has expressly singled out as deserving appellate consideration.

III. Application

[ 176 ] Applying 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. I would add only the following to my colleague's analysis.

[ 177 ] 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 who engage in these acts will be inadmissible to Canada. [Citizenship and Immigration Canada, Bill C-11: Clause by Clause Analysis (September 2001), at pp. 31-32 (emphasis added)]

[ 178 ] 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. 34(3) of the IRPA, a permanent resident found inadmissible under s. 34 who has been a lawful resident for at least five years may apply to the Minister of Public Safety and Emergency Preparedness for relief from their inadmissibility. No such provision is made for persons who are inadmissible under s. 36.

[ 179 ] The 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), but which is alleged to have "endanger[ed] the lives or safety of persons in Canada", could be found inadmissible under s. 34(1)(e) rather than s. 36. That person would be subject to the harsher inadmissibility regime under s. 34, rather than the less harsh regime under s. 36. This is an absurd result that cannot have been Parliament's intention.

[ 180 ] Further, 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)].

[ 181 ] 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).

[ 182 ] Clearly, 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.

[ 183 ] Third, 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.

[ 184 ] 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)), 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]

[ 185 ] Member 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.)).

[ 186 ] For 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

[ 187 ] 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.

[ 188 ] My 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

[ 189 ] In 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.

Solicitors

Solicitors for the appellant Earl Mason: Edelmann & Company Law Corporation, Vancouver.

Solicitors for the appellant Seifeslam Dleiow: Robert J. Kincaid Law Corporation, Vancouver.

Solicitors for the respondent: Attorney General of Canada — Ontario Regional Office, Toronto; Attorney General of Canada — British Columbia Regional Office, Vancouver.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Crown Law Office — Civil, Toronto.

Solicitor for the intervener the Attorney General of Saskatchewan: Government of Saskatchewan — Civil Law Branch, Legal Services Division, Regina.

Solicitors for the intervener the Canadian Council for Refugees: Downtown Legal Services, Toronto; Jackman & Associates, Toronto.

Solicitors for the intervener the Canadian Association of Refugee Lawyers: Landings, Toronto; University of Ottawa — Faculty of Law, Ottawa; Legal Aid Ontario, Toronto.

Solicitors for the intervener the Social Planning Council of Winnipeg: Dentons Canada, Toronto; Fillmore Riley, Winnipeg.

Solicitors for the intervener the Canadian Muslim Lawyers Association: Mithoowani Waldman Immigration Law Group, Toronto; Barteaux Labour & Employment Lawyers Inc., Halifax.

Solicitor for the intervener the United Nations High Commissioner for Refugees: Refugee Law Office, Legal Aid Ontario, Toronto.

Solicitors for the intervener Amnesty International Canadian Section (English Speaking): Olthuis Van Ert, Ottawa.

Solicitors for the intervener the Community & Legal Aid Services Program: Community & Legal Aid Services Program, Toronto; Mamann, Sandaluk & Kingwell, Toronto.

Solicitors for the intervener Association québécoise des avocats et avocates en droit de l'immigration: Cliche-Rivard, Montréal.

Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Pender Litigation, Vancouver.

[^1]: When formal reasons are not required, a reviewing court will evaluate the administrative decision maker's reasoning process by looking at the context and the record as a whole in order to understand the decision (Vavilov, at paras. 136-38). In such a case, the reviewing court's analysis will "focus on the outcome rather than on the decision maker's reasoning process" (para. 138).

* Brown J. did not participate in the final disposition of the judgment.