2021 FCA 163, 2021 FCA 163

EDITOR’S NOTE: This document is subject to editorial revision before its reproduction in final form in the Federal Courts Reports . A-392-19 2021 FCA 163 The Minister of Public Safety and Emergency Preparedness ( Appellant ) v. Edgar Alberto Lopez Gaytan ( Respondent ) and The Canadian Association of Refugee Lawyers (CARL) ( Intervener ) Indexed as: Canada (Public Safety and Emergency Preparedness) v. Gaytan Federal Court of Appeal, Near, Gleason and LeBlanc JJ.A.—By videoconference, January 20; Ottawa, August 5, 2021.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Appeal from Federal Court decision determining that it was open to Immigration Division (ID), Immigration Appeal Division (IAD) of Immigration and Refugee Board (collectively, Board) to consider criminal law defence of duress when assessing whether permanent resident or foreign national is inadmissible to Canada for being member of criminal organization or for engaging in criminal activities of said organization, as per Immigration and Refugee Protection Act, s. 37(1) (a) — In concluding as he did, Federal Court Judge dismissed claim that authority to consider criminal law defences in inadmissibility proceedings brought under Act , s. 37(1) is vested exclusively in appellant by virtue of Act , s. 42.1(1) — Having determined that Board could consider respondent’s defence of duress, Federal Court saw no basis for interfering with IAD’s finding that respondent had successfully established elements of that defence, was not, therefore, inadmissible to Canada under Act , s. 37(1) (a) — Question as to whether, in determining if individual is inadmissible under Act , s. 37(1) (a), ID, IAD are entitled to consider defence of duress, certified as question of general importance — Respondent, Mexican, filed refugee claim — Had been involved with Mexican drug trafficking cartel (Cartel) — Respondent’s involvement in Cartel’s criminal activities giving rise to inadmissibility proceedings, caused suspension of respondent’s refugee claim — Before ID, respondent claimed involvement with Cartel was involuntary; raised defence of duress — ID found respondent not person described in Act , s. 37(1) (a) — On appeal, IAD confirmed ID’s findings — Judicial review of that decision dismissed by Federal Court, thus giving rise to present appeal — Issues were, in determining whether individual is inadmissible under Act , s. 37(1) (a), is Board entitled to consider defence of duress and if so, whether IAD’s application of defence of duress to respondent’s circumstances was reasonable — IAD’s finding that it was entitled to consider defence of duress when determining whether individual is inadmissible under Act , s. 37(1) (

a) was not only reasonable but correct — Regarding jurisdictional issue, in proceedings brought before it under Act , which include inadmissibility proceedings, Board, by virtue of Act , s. 162(1) has “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction” — For its part, Act , s. 42.1 empowering appellant to declare that matters referred to in s. 34 (security), s. 37(1) (organized criminality), part of s. 35 (human or international rights violations) do not constitute inadmissibility —That power, which appellant alone can exercise as per Act , s. 6(3) , permits granting of exemption from application of these inadmissibility provisions — That relieving power is meant to exempt non-citizens who innocently contribute to or become members of terrorist or criminal organizations from consequences of inadmissibility — No express language limiting Board’s jurisdiction in manner proposed by appellant — Broad language of Act , s. 162(1) suggesting that Board’s exclusive authority to consider “all questions of law and fact, including questions of jurisdiction” in proceedings brought before it not so constrained — Nor is there express language in Act granting appellant exclusive authority to consider criminal law defences in context of inadmissibility — Act , s. 42.1 not having limiting effect on Board`s jurisdiction as appellant claimed; not having temporal aspect — Appellant`s view on jurisdiction at odds with Poshteh v.

Canada (Minister of Citizenship and Immigration), which involved membership of minor in terrorist organization — Poshteh signals clear understanding on part of Court that broad range of considerations such as mental capacity, duress, falling within expertise of Board — Unequivocally signalled that view adopted by Federal Court Judge regarding Board’s jurisdiction to consider duress in inadmissibility matter brought before it under Act , s. 37(1) (

a) not only fell within range of possible, acceptable outcomes but was also correct — Inadmissibility proceedings not criminal or quasi-criminal in nature; Board is immigration tribunal — Given text, context, purpose of provisions at issue, despite presence of Act , s. 42.1 , Parliament not intending membership to extend to those who were forcibly recruited by terrorist or criminal organization, who performed acts consistent with goals of such organization under duress — This goes to very essence of membership determination under Act , ss. 34 , 37 — Therefore, in determining admissibility under Act , s. 37(1) (a), Board is entitled to consider whether membership was result of duress or coercion — Certified question answered in affirmative — With respect to IAD’s finding of admissibility, Federal Court right when concluding that appellant merely invited it to reconsider evidence about respondent’s available safe avenue of escape — Appellant was asking same thing here — However, it is not role of reviewing court to reassess evidence that was before administrative decision maker, to come up with its own conclusions — IAD applied correct legal test in relation to “safe avenue of escape” criterion; it reasonably applied that test to facts before it — Its conclusion that reasonable, similarly situated person could not have extricated themselves from situation of duress bore hallmarks of reasonable decision: it was internally coherent, stemmed from rational chain of analysis, was justified in relation to facts, law that constrained Board — Therefore, there was no reason to interfere with it — Appeal dismissed.

Immigration Practice — Appeal from Federal Court decision determining that it was open to Immigration Division (ID), Immigration Appeal Division (IAD) of Immigration and Refugee Board (collectively, Board) to consider criminal law defence of duress when assessing whether permanent resident or foreign national is inadmissible to Canada for being member of criminal organization or for engaging in criminal activities of said organization, as per Immigration and Refugee Protection Act, s. 37(1) (a) — Respondent previously involved with Mexican drug trafficking cartel (Cartel) before claiming refugee protection in Canada — Federal Court, in concluding as it did, dismissed claim that authority to consider criminal law defences in inadmissibility proceedings brought under Act , s. 37(1) is vested exclusively in appellant by virtue of Act , s. 42.1(1) — Having determined that Board could consider respondent’s defence of duress, Federal Court saw no basis for interfering with IAD’s finding that respondent had successfully established elements of that defence; was not, therefore, inadmissible to Canada under Act , s. 37(1) (a) — Question certified as to whether, in determining if individual is inadmissible under Act , s. 37(1) (a)), ID, IAD are entitled to consider defence of duress — Whether IAD’s application of defence of duress to respondent’s circumstances was reasonable — Regarding IAD’s finding of admissibility, Federal Court right when concluding that appellant merely invited Federal Court to reconsider evidence about respondent’s available safe avenue of escape — Appellant was asking same thing here — However, it is not role of reviewing court to reassess evidence that was before administrative decision maker, to come up with its own conclusions — IAD applied correct legal test in relation to “safe avenue of escape” criterion; it reasonably applied that test to facts before it — Its conclusion that reasonable, similarly situated person could not have extricated themselves from situation of duress bore hallmarks of reasonable decision: it was internally coherent, stemmed from rational chain of analysis, was justified in relation to facts, law that constrained Board — Therefore, there was no reason to interfere with IAD’s decision.

This was an appeal from a Federal Court decision determining that it was open to the Immigration Division (the ID) and the Immigration Appeal Division (the IAD) of the Immigration and Refugee Board (collectively, the Board) to consider the criminal law defence of duress when assessing whether a permanent resident or a foreign national is inadmissible to Canada for being a member of a criminal organization or for engaging in the criminal activities of said organization, as per paragraph 37(1) (

a) of the Immigration and Refugee Protection Act . In concluding as he did, the Federal Court Judge dismissed the claim that the authority to consider criminal law defences in inadmissibility proceedings brought under subsection 37(1) of the Act is vested exclusively in the appellant by virtue of subsection 42.1(1) of the Act . That provision empowers the appellant to grant ministerial relief from a number of inadmissibility findings when he is satisfied that doing so would not be contrary to the national interest.

Having determined that the Board could consider the respondent’s defence of duress, the Federal Court saw no basis for interfering with the IAD’s finding that the respondent had successfully established the elements of that defence and was not, therefore, inadmissible to Canada under paragraph 37(1) (

a) of the Act . The question as to whether, in determining if an individual is inadmissible under paragraph 37(1) (

a) of the Act , the ID and the IAD are entitled to consider the defence of duress, was certified as a question of general importance. The respondent is a citizen of Mexico. He entered Canada in the spring of 2009. A few weeks later, he filed for refugee protection alleging that he feared returning to Mexico because of his involvement with the Sinaloa cartel, a Mexican drug trafficking organization (the Cartel).

While the respondent’s refugee claim was still pending, his involvement in the Cartel’s criminal activities gave rise to an inadmissibility report, which gave rise to an inadmissibility hearing before the ID. These proceedings caused the suspension of the respondent’s refugee claim. Before the ID, the respondent did not challenge the appellant’s assertion that the Cartel is a criminal organization within the meaning of paragraph 37(1) (

a) of the Act ; however, he claimed that his involvement with the Cartel had been involuntary in that he had been forcibly recruited into it and honestly believed that he and his mother were at risk of being killed if he did not heed the directions of the Cartel. The ID considered but did not accept the respondent’s defence of duress on the ground that he had failed to establish two of the three constituent elements of that defence, namely the immediacy of the threat and the absence of a safe avenue of escape.

Later, the Federal Court set aside the ID’s decision holding that the ID made a reviewable error in its application of the law relating to the defence of duress to the respondent’s circumstances. More particularly, it found that the ID had failed to consider the impact of the respondent’s drug addiction on his ability to make a rational assessment of his potential avenues of escape. The matter was remitted to the ID for re-determination and it was determined that the respondent was not a person described in paragraph 37(1) (

a) of the Act . It also dismissed the appellant’s contention, raised for the first time, that the ID lacked jurisdiction to consider the respondent’s defence of duress. The appellant appealed that decision to the IAD, which confirmed the ID’s findings on jurisdiction; that the respondent’s criminal activities on behalf of the Cartel had been morally involuntary; and that paragraph 37(1) (

a) of the Act therefore did not apply to him. The appellant sought judicial review of that decision. That application was dismissed, thus giving rise to the present appeal. The issues were, in determining whether an individual is inadmissible under paragraph 37(1) (

a) of the Act , is the Board entitled to consider the defence of duress and, if so, whether the IAD’s application of the defence of duress to the respondent’s circumstances was reasonable. Held, the appeal should be dismissed. The IAD’s finding that it was entitled to consider the defence of duress when determining whether an individual is inadmissible under paragraph 37(1) (

a) of the Act was not only reasonable but correct. Regarding the jurisdictional issue, the Board relied on Federal Court precedents in reaching its conclusion. Therefore, it could hardly be faulted for having concluded that those precedents were binding on it. Inadmissibility can be sought on various grounds ranging from national security to public health. These grounds are set out in sections 34 to 42 of the Act (under “Division 4—Inadmissibility”). Inadmissibility for organized criminality is provided for by subsection 37(1) of the Act .

According to that provision, a non-citizen is inadmissible either for being a member of a criminal organization or engaging in the activities of the organization, or for engaging, in the context of transnational crime, in activities such as people smuggling or money laundering. In proceedings brought before it under the Act , which include inadmissibility proceedings, the Board, by virtue of subsection 162(1) of the Act , has “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”. For its part,

section 42.1 of the Act empowers the appellant to declare that the matters referred to in

section 34 (security), subsection 37(1) (organized criminality), and part of

section 35 of the Act (human or international rights violations) do not constitute inadmissibility. That power, which the appellant alone can exercise as per subsection 6(3) of the Act , permits the granting of an exemption from the application of these inadmissibility provisions provided the appellant is satisfied that the presence in Canada of the person seeking the exemption, or for whom it is considered, would not be contrary to the national interest. That relieving power is meant to exempt non-citizens who innocently contribute to or become members of terrorist [or, in the case at bar, criminal] organizations from the consequences of inadmissibility notwithstanding proof that they have

been associated with or have been members of such organizations. Relief under

section 42.1 is not available to all non-citizens but only to foreign nationals. It may be granted either on application by the foreign national or on the Minister’s own initiative. Based on the text of the relevant provisions, there is no express language limiting the Board’s jurisdiction in the manner proposed by the appellant. The broad language of subsection 162(1) of the Act rather suggests that the Board’s exclusive authority to consider “all questions of law and fact, including questions of jurisdiction” in proceedings brought before it, is not so constrained.

Nor is there express language in the Act granting the appellant exclusive authority to consider criminal law defences in the context of inadmissibility. However, the appellant claimed that when read,

section 42.1 does have a limiting effect on the Board’s jurisdiction. He submitted that the concept of “membership” in sections 34 and 37 of the Act , which is not defined in the Act , was intended to be broadly interpreted. It was difficult to accept the appellant’s contention that the interplay between those provisions deprives the Board of any authority to consider duress when determining membership in a terrorist or criminal organization. The contrary view to that of the appellant’s was reflected in the prevailing Federal Court case law and did not need to be interfered with.

In particular, the appellant’s view was at odds with Poshteh v. Canada (Minister of Citizenship and Immigration) , which involved membership of a minor in a terrorist organization. Poshteh signals a clear understanding on the part of the Court that this broad range of considerations falls within the expertise of the Board. Factors such as mental capacity or engagement in the activities of the terrorist organization free of coercion were considerations that went to the heart of the membership determination in that particular case.

Poshteh provides persuasive support for the line of cases relied upon by the Federal Court Judge where duress was raised in inadmissibility matters open to ministerial relief and found to be applicable by both the Board and the Federal Court. Poshteh unequivocally signalled that the view adopted by the Federal Court Judge regarding the Board’s jurisdiction to consider duress in an inadmissibility matter brought before it under paragraph 37(1) (

a) of the Act not only fell within a range of possible, acceptable outcomes but was also correct. The main purpose of subsection 37(1) is to deal with organized criminality in the immigration context. The language of that provision links inadmissibility to forms of conduct which, for the most part, are criminally prohibited. Membership in either a criminal or a terrorist organization attracts criminal liability in Canada. It has been held, time and again, that inadmissibility proceedings are not criminal or quasi-criminal in nature.

In matters raised under subsection 37(1) of the Act , the criminal law imposes on the Board, an “immigration tribunal”, constraints on how and what it can lawfully decide. It would take much clearer language from Parliament to remove the availability of the consideration of duress from the ambit of matters the Board might consider in an admissibility proceeding. One simply cannot infer such an intent from the mere presence of

section 42.1. As to the relevance of duress—or necessity—in establishing membership, it is not controverted that the membership clauses in paragraphs 34(1)(

f) and 37(1)(

a) were intended “to cast a wide net in order to capture a broad range of conduct that is inimical to Canada’s interests”. However broadly the term “member” is to be interpreted, it must have some meaning. It is entirely consistent with the text, context and purpose of the provisions at issue to hold that despite the presence of

section 42.1, Parliament did not intend membership to extend to those who were forcibly recruited by a terrorist or a criminal organization and performed acts consistent with the goals of such an organization while under duress. This goes to the very essence of membership determination under sections 34 and 37 of the Act and touches upon one of the core functions of the Board, which is to determine whether membership has been established by weighing various factors and considerations in light of the particular circumstances of each case.

Ministerial relief can be sought and processed prior to the Board even being called upon to hold an inadmissibility hearing and exercise its own jurisdiction. Therefore, nothing would prevent a non-citizen in the situation of the respondent from seeking, at the earliest opportunity, the declaration contemplated by

section 42.1 as there is “no temporal aspect” to

section 42.1. Finally, the appellant’s contention that there is a two-step process designed by Parliament for matters where ministerial relief is available and that case law followed by the Federal Court impermissibly altered it was not accepted. Therefore, in determining admissibility under paragraph 37(1) (

a) of the Act , the Board is entitled to consider whether membership was the result of duress or coercion. The certified question was answered in the affirmative. With respect to the IAD’s finding of admissibility, the appellant claimed that the IAD, in finding that the respondent had been under duress, failed to follow or distinguish authoritative case law governing when drug addiction may excuse a person from not exercising an objectively available safe avenue of escape.

Before the IAD, the appellant argued that the respondent had the mental capacity to formulate a plan of escape and the physical capacity and opportunity to carry out that plan; that considered cumulatively, this should have led the IAD to find that the respondent had a safe avenue of escape and did not, therefore, meet all the elements of the defence of duress.

The IAD dismissed the appellant’s contention, being of the view that the ID had considered all of the respondent’s circumstances when considering the element of avenue of escape and that a combination of factors limited the respondent’s assessment regarding a safe avenue of escape. The Federal Court was right when it concluded that the appellant was merely inviting it to reconsider the evidence. This is what the appellant was asking here as well. However, it is not the role of a reviewing court to reassess the evidence that was before the administrative decision maker and come up with its own conclusions.

The IAD applied the correct legal test in relation to the “safe avenue of escape” criterion and it reasonably applied that test to the facts before it. Its conclusion that a reasonable similarly situated person could not have extricated themselves from the situation of duress bore the hallmarks of a reasonable decision: it was internally coherent, stemmed from a rational chain of analysis and was justified in relation to the facts and law that constrained the Board. Therefore, there was no reason to interfere with it. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7. Criminal Code , R.S.C., 1985, c. C-46, ss. 279.01(1) , 462.31(1) , 467.1 (1) , 467.11(1) . Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22, r. 22 . Immigration Act, 1976 , S.C. 1976-77, c. 52. Immigration Act , R.S.C., 1985, c. I-2. Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 6(3) , 33 , 34 –42, 44–53, 98, 162(1).

Immigration and Refugee Protection Regulations, SOR/2002-227, s. 16. TREATIES AND OTHER INSTRUMENTS CITED United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F. CASES CITED APPLIED: Agraira v. Canada (Public Safety and Emergency Preparedness), 2011 FCA 103, [2012] 4 F.C.R. 538, 415 N.R. 121, affd 2013 SCC 36,[2013] 2 S.C.R. 559; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, 441 D.L.R. (4th)1; Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487; R. v.

Henry, 2005 SCC 76,[2005] 3 S.C.R. 609; Jalloh v. Canada (Public Safety and Emergency Preparedness), 2012 FC 317, 2012 CarswellNat 654 (WL Can.);Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 121, [2005] 3 F.C.R. 511. DISTINGUISHED: Canada (Citizenship and Immigration) v. Kassab, 2020 FCA 10, [2021] 3 F.C.R. 149, 441 D.L.R. (4th) 369; Mahjoub v. Canada(Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344. CONSIDERED: Lopez Gayton v.

Canada (Public Safety and Emergency Preparedness), 2012 FC 1075, 2012 CarswellNat 3550 (WL Can.); B006 v.Canada (Citizenship and Immigration), 2013 FC 1033, [2015] 1 F.C.R. 241, 440 F.T.R. 185; Canada (Public Safety and EmergencyPreparedness) v. Aly, 2018 FC 1140, 2018 CarswellNat 6697 (WL Can.); Suresh v. Canada (Minister of Citizenship and Immigration),2002 SCC 1, [2002] 1 S.C.R. 3; Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262, [2015] 4 F.C.R. 162;Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240, 343 D.L.R. (4th) 510; Saleh v.

Canada(Citizenship and Immigration), 2010 FC 303, 363 F.T.R. 204; Gazi v. Canada (Citizenship and Immigration), 2017 FC 94, 2017CarswellNat 134 (WL Can.); Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198;B010 v. Canada (Citizenship and Immigration), 2013 FCA 87, [2014] 4 F.C.R. 326, revd on other grounds 2015 SCC 58,[2015] 3 S.C.R. 704; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; Li v. Canada(Minister of Citizenship and Immigration), (FCA), [1997] 1 F.C. 235, (1996), 138 D.L.R. (4th) 275 (C.A.); Ugbazghiv.

Canada (Minister of Citizenship and Immigration), 2008 FC 694, [2009] 1 F.C.R. 454; Canada (Minister of Citizenship andImmigration) v. Adam, (FCA), [2001] 2 F.C. 337, (2001), 196 D.L.R. (4th) 497 (C.A.). REFERRED TO: R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973, 184 N.R. 165; Alberta (Information and Privacy Commissioner) v. AlbertaTeachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.,2016 SCC 47, [2016] 2 S.C.R. 293; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v.

Penunsi,2019 SCC 39, [2019] 3 S.C.R. 91, 435 D.L.R. (4th) 65; Canada (Minister of Employment and Immigration) v. Chiarelli, (SCC), [1992] 1 S.C.R. 711, 135 N.R. 161; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2 F.C.R. 355; R. v.Prokofiew, 2010 ONCA 423, 100 O.R. (3d) 401, affd 2012 SCC 49, [2012] 2 S.C.R. 639; Gil Luces v. Canada (Public Safety andEmergency Preparedness), 2019 FC 1200, 2019 CarswellNat 4900 (WL Can.); Konate v. Canada (Public Safety and EmergencyPreparedness), 2018 FC 129, 2018 CarswellNat 541 (WL Can.); Castellon Viera v.

Canada (Citizenship and Immigration),2012 FC 1086, 418 F.T.R. 116; Thiyagarajah v. Canada (Citizenship and Immigration), 2011 FC 339, 2011 CarswellNat 902 (WLCan.); Belalcazar v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1013, 395 F.T.R. 291; Jayasekara v. Canada(Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R. 164; Febles v. Canada (Citizenship and Immigration),2014 SCC 68, [2014] 3 S.C.R. 431; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289;Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193; Khan v.

Canada (Citizenship andImmigration), 2017 FC 397, 2017 CarswellNat 1722 (WL Can.); Chiau v. Canada (Minister of Citizenship and Immigration), (FCA), [2001] 2 F.C. 297, (2000), 195 D.L.R. (4th) 422 (C.A.); R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14; TorontoCoalition to Stop the War v. Canada (Public Safety and Emergency Preparedness), 2010 FC 957, [2012] 1 F.C.R. 413; Damir v. Canada(Citizenship and Immigration), 2018 FC 48, [2018] 4 F.C.R. D-2, 2018 CarswellNat 69 (WL Can.); Gacho v. Canada (Citizenship andImmigration), 2016 FC 794, 2016 CarswellNat 3039 (WL Can.); Mohamed v.

Canada (Citizenship and Immigration), 2015 FC 622, 481F.T.R. 1; Ghaffari v. Canada (Citizenship and Immigration), 2013 FC 674, 434 F.T.R. 274; Kanapathy v. Canada (Public Safety andEmergency Preparedness), 2012 FC 459, 2012 CarswellNat 1937 (WL Can.).

APPEAL from Federal Court decision (2019 FC 1152, [2020] 2 F.C.R. 617) determining that it was open to the Immigration andRefugee Board, Immigration Division and Immigration Appeal Division to consider the criminal law defence of duress when assessingwhether a permanent resident or a foreign national is inadmissible to Canada for being a member of a criminal organization or forengaging in the criminal activities of said organization, as per paragraph 37(1)(

a) of the Immigration and Refugee Protection Act. Appealdismissed. APPEARANCES Brendan Friesen for appellant. Erin C. Roth and Bjorn Harsanyi, Q.C., for respondent. Prasanna Balasundaram and Asiya Hirji for intervenor. SOLICITORS OF RECORD

Deputy Attorney General of Canada for appellant. Edelmann & Co. , Vancouver, and Stewart Sharma Harsanyi , Calgary, for respondent. Downtown Legal Services and Neighbourhood Legal Services , Toronto, for intervener. The following are the amended reasons for judgment rendered in English by L eBlanc J.A.: I. Introduction [ 1 ] This is an appeal by the Minister of Public Safety and Emergency Preparedness (the Minister) from a decision rendered by Manson J. of the Federal Court (the Judge).

In his decision, dated September 11, 2019 and reported as 2019 FC 1152 , [2020] 2 F.C.R. 617 (the Judgment), the Judge determined that it is open to the Immigration Division (the ID) and the Immigration Appeal Division (the IAD) of the Immigration and Refugee Board of Canada (collectively, the Board) to consider the criminal law defence of duress when assessing whether a permanent resident or a foreign national is inadmissible to Canada for being a member of a criminal organization or for engaging in the criminal activities of said organization, as per paragraph 37(1) (

a) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the Act ). [ 2 ] In concluding as he did, the Judge dismissed the claim that the authority to consider criminal law defences in inadmissibility proceedings brought under subsection 37(1) of the Act is vested exclusively in the Minister by virtue of subsection 42.1(1) of the Act . That provision empowers the Minister to grant ministerial relief from a number of inadmissibility findings, i.e. those made pursuant to

section 34 , paragraphs 35 (1)(

b) and (

c) and subsection 37(1) of the Act , when he is satisfied that doing so would not be contrary to the national interest. In particular, the Judge rejected the Minister’s contention that allowing the Board to consider such defences in matters contemplated by subsection 42.1(1) of the Act would deprive that provision of its function. [ 3 ] Having determined that the Board could consider the respondent’s defence of duress, the Judge saw no basis for interfering with the IAD’s finding that the respondent had successfully established the elements of that defence and was not, therefore, inadmissible to Canada under paragraph 37(1) (

a) of the Act . [ 4 ] As permitted by paragraph 74 (

d) of the Act , the Judge certified the following question of general importance: In determining whether an individual is inadmissible under paragraph 37(1)(

a) of the [ Act ], are the [ID] and [IAD] entitled to consider the defence of duress? [ 5 ] For the reasons that follow, I am of the view that the Judge did not err in answering that question in the affirmative. I am also of the view that he did not commit any error in finding that it was reasonably open to the IAD to conclude as it did on the actual merits of the defence of duress raised by the respondent. II. Background [ 6 ] The respondent is a citizen of Mexico. He entered Canada in the spring of 2009.

A few weeks later, he filed for refugee protection alleging that he feared returning to Mexico because of his involvement with the Sinaloa Cartel, a Mexican drug trafficking organization (the Cartel). In particular, he feared for his life because he had attempted to break free from the grip of the Cartel prior to fleeing to Canada. [ 7 ] The respondent’s circumstances, as they relate to the Cartel, are not in dispute in the present proceedings. They were summarized as follows by the IAD [at paragraphs 8–9]: ….

The Respondent is a citizen of Mexico and he characterized himself as a crystal meth addict around the time he turned 18 years old. He bought his drugs from affiliates of the Sinaloa Cartel in his town. He was forcibly recruited to work for the Cartel and worked for them for about 18 months. He would be picked up from his home by members of the Cartel in the morning and would spend the day packaging and selling drugs. At the end of the day, he would be brought home. At times, he also delivered bribe money to the police. During these 18 months, Mr.

Lopez Gaytan was physically assaulted and serious threats were made against him and his mother. Instead of receiving payment for his services, Mr. Lopez Gaytan was supplied with drugs to fuel his addiction. The drug house where the Respondent worked was raided by the police and the Respondent was arrested. He confided in the police in the hope of gaining freedom from the Cartel. However, that did not happen. Instead, the police brought him to a location where members of the Cartel beat him, stabbed him with a machete, and threatened to kill him. The following day, Mr. Lopez Gaytan overdosed on crystal meth.

He then recalls waking up in a rehabilitation facility. Eventually his mother came to know where he was and moved him to a different facility under an alias. He remained there for three months and he has been free from drug addiction since then. Mr. Lopez Gaytan and his mother lived in a different city for about two years and then returned to their home town. Mr. Lopez Gaytan was identified by a member of the Cartel and he was shot at.

He left Mexico the next day. (Appeal book, Vol. 1, page 38.) [ 8 ] In January 2011, while his refugee claim was still pending, the respondent’s involvement in the Cartel’s criminal activities gave rise to an inadmissibility report prepared under subsection 44(1) of the Act . That report, in turn, gave rise to an inadmissibility hearing before the ID pursuant to subsection 44(2) and

section 45 of the Act . These proceedings caused the suspension of the respondent’s refugee claim. [ 9 ] Before the ID, the respondent did not challenge the Minister’s assertion that the Cartel is a criminal organization within the meaning of paragraph 37(1) (

a) of the Act . He likewise did not challenge that he had personally engaged in activities, such as packaging and trafficking drugs and delivering protection money to the police, that were part of the Cartel’s criminal enterprise. However, he claimed that his involvement with the Cartel had been involuntary in that he had been forcibly recruited into it and honestly believed that

he and his mother were at risk of being killed if he did not heed the directions of the Cartel. [10] The ID considered, but did not accept, the respondent’s defence of duress on the ground that he had failed to establish two of thethree constituent elements of that defence, namely the immediacy of the threat and the absence of a safe avenue of escape. In the ID’sview, the respondent had not been under duress throughout the entire two-year period he worked for the Cartel. [11] In September 2012, the ID’s decision was set aside in Lopez Gayt[a]n v.

Canada (Public Safety and Emergency Preparedness),2012 FC 1075, 2012 CarswellNat 3550 (WL Can.) (Lopez Gaytan 2012). The Federal Court held that the ID made a reviewable error inits application of the law relating to the defence of duress to the respondent’s circumstances. More particularly, it found that the ID hadfailed to consider the impact of the respondent’s drug addiction on his ability to make a rational assessment of his potential avenues ofescape.

The matter was remitted to the ID for re-determination. [12] On re-determination, the Minister asserted for the first time that the ID lacked jurisdiction to consider the respondent’s defenceof duress. On November 27, 2017, the ID dismissed that contention on the ground that it ran contrary to the Federal Court’s decision inB006 v. Canada (Citizenship and Immigration), 2013 FC 1033, [2015] 1 F.C.R. 241, 440 F.T.R. 185 (B006), where a similar argumenthad unsuccessfully been made by the Minister.

Then, applying the elements of the defence of duress to the respondent’s circumstances inlight of the Federal Court’s directions in Lopez Gaytan 2012, it determined that the respondent was not a person described in paragraph37(1)(

a) of the Act. [13] The Minister appealed that decision to the IAD. On December 31, 2018, the IAD dismissed the appeal (the 2018 Decision). First,it summarily rejected the Minister’s jurisdictional argument, stating that the Federal Court’s decision in Canada (Public Safety andEmergency Preparedness) v. Aly, 2018 FC 1140, 2018 CarswellNat 6697 (WL Can.) (Aly) was determinative of the issue. Then, itconfirmed the ID’s findings that the respondent’s criminal activities on behalf of the Cartel had been morally involuntary and thatparagraph 37(1)(

a) of the Act therefore did not apply to him. [14] The Minister sought judicial review of both aspects of the 2018 Decision. III. The Judgment [15] As indicated at the outset of these reasons, the Minister’s challenge of the 2018 Decision proved unsuccessful.

After noting thatthe “Federal Court has consistently found that the defence of duress is applicable in inadmissibility proceedings” (Judgment, atparagraph 17), the Judge agreed with his colleagues in B006 and Aly that the ability to raise the criminal law defences of duress ornecessity as a basis for relief under subsection 42.1(1) of the Act did not preclude claimants from raising them in an admissibilityhearing, hereby dismissing the Minister’s contention that allowing the Board to consider these defences in such proceedings “woulddeprive subsection 42.1(1) of its function” (Judgment, at paragraph 19).

He also agreed that this Court’s decision in Agraira v. Canada(Minister of Public Safety and Emergency Preparedness), 2011 FCA 103, [2012] 4 F.C.R. 538, 415 N.R. 121 (Agraira) provided nosupport for the argument advanced by the Minister.

More particularly, the Judge was satisfied that Agraira “was simply providing anexample of factors that could be considered in a ministerial relief application, not ruling out the possibility of [a defence of] duress beingraised at inadmissibility hearings” (Judgment, at paragraph 21). [16] The Judge then considered the Minister’s submission that cases in which the Federal Court had found that the defence of duresscould be considered by the Board when dealing with paragraph 37(1)(

b) of the Act ought to be distinguished from cases involvingparagraph 37(1)(a). He saw no principled reason for drawing such a distinction, as the underlying rationale for both defences is moralinvoluntariness (Judgment, at paragraphs 26–27). He further rejected the Minister’s contention that the defence of duress was notrelevant in inadmissibility proceedings because, in the criminal law context, it only serves to negate the mens rea requirement of anoffence, whereas in inadmissibility proceedings no such mental element is required to demonstrate inadmissibility. Quoting from LamerC.J.’s judgment in R. v.

Hibbert, (SCC), [1995] 2 S.C.R. 973, 184 N.R. 165 (Hibbert), he held that duress can provide adefence not only by negating the requisite mens rea of the conduct in question but also by excusing the actions of the individual,resulting in mens rea being an irrelevant consideration when duress operates as an excuse (Judgment, at paragraphs 28–29). [17] For the same reason, the Judge found that the distinction the Minister drew between the use of the terms “engaging in”and “committing” in certain inadmissibility provisions of the Act had no effect on the applicability of the defence of duress becausewhen it operates as an excuse, that defence “goes to the voluntariness of the act in question, whether that be membership in anorganization or otherwise” (Judgment, at paragraphs 30–31). [18] As for the merits of the 2018 Decision, the Judge noted that the only issue to be determined was whether the respondent hada “safe avenue of escape”.

He found no reason to interfere with the IAD’s findings on that point, being satisfied that the respondent’sdrug addiction was one of a number of factors considered by the IAD, the others being the repeated beatings, the continuous deaththreats, and the honest belief that the Cartel was willing and able to track down the respondent and his mother.

In short, the Judge wassatisfied that the IAD’s conclusion, i.e. that a reasonable similarly situated person could not have extricated themselves from thesituation of duress the respondent found himself in, fell within a range of rational outcomes (see Judgment, at paragraphs 37–43). IV. Issues and Standard of Review [19] This appeal raises the following issues: 1) In determining whether an individual is inadmissible under paragraph 37(1)(

a) of the Act, is the Board entitled to consider thedefence of duress? 2) If so, was the IAD’s application of the defence of duress to the respondent’s circumstances reasonable? [20] It is trite that on appeal from a decision of the Federal Court sitting in judicial review, this Court must determine whether theFederal Court chose the appropriate standard of review and, if so, whether it properly applied it in reviewing the impugned decision. Thisrequires the Court to “step into the shoes” of the Federal Court and effectively focus on the administrative decision under review

( Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 ( Agraira SCC ), at paragraphs 45– 47 ). [ 21 ] Here, the Judge chose to review the 2018 Decision on a standard of reasonableness. Both parties are of the view that the Judge made the proper choice and that this choice remains valid under the review framework laid out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, 441 D.L.R. (4th) 1 ( Vavilov ).

In Vavilov , the Supreme Court stated that when reviewing an administrative decision, the reviewing court “should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness” ( Vavilov , at paragraph 25 ). [ 22 ] That presumption extends to matters where the impugned decision turns on the decision maker’s

interpretation of its home statute. This was already well established by cases such as Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paragraph 30 and Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 , [2016] 2 S.C.R. 293, at paragraphs 22–23 . It was reiterated in Vavilov (at paragraph 25 ). [ 23 ] On reasonableness review, the focus of the inquiry “must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome” ( Vavilov , at paragraph 83 ).

Ultimately, the reviewing court must be satisfied that the administrative decision 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” ( Vavilov , at paragraph 85 ). When the matter at issue concerns more specifically the decision maker’s

interpretation of its home statute, reasonableness review means that although the decision maker’s

interpretation must be consistent with the text, context, and purpose of the provision, as required by the usual principles of statutory

interpretation ( Vavilov , at paragraph 120 ), the reviewing court must refrain from undertaking a de novo analysis of the question or from asking itself “what the correct decision would have been”. It must instead, “examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached” ( Vavilov , at paragraph 116 ). [ 24 ] The reasonableness review framework clearly applies to the second question in issue in the present matter.

However, it is less clear that it applies to the first one, the jurisdictional issue as Vavilov sets out a limited number of instances where the presumption of reasonableness review can be rebutted. One such instance concerns questions regarding “the jurisdictional boundaries between two or more administrative bodies” ( Vavilov , at paragraph 63 ) as “the rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another”.

This is to avoid “pulling a party in two different and incompatible directions” ( Vavilov , at paragraph 64 ). The examples given by the Supreme Court in support of this exception to the presumption of reasonableness review all deal with administrative bodies deriving their authority from different statutory regimes, not, as is the case here, from the same statutory framework.

The issue of the applicability of this exception to the case at bar not having been raised or addressed by the parties, it is preferable to leave it for another day. [ 25 ] That said, I am satisfied, for the reasons that follow, that the IAD’s finding that it is entitled to consider the defence of duress when determining whether an individual is inadmissible under paragraph 37(1) (

a) of the Act , is not only reasonable, but correct. V. Analysis A. The jurisdictional issue [ 26 ] The Board relied on Federal Court precedents in reaching its conclusion on jurisdiction. Therefore, it can hardly be faulted for having concluded that those precedents were binding on it (see Vavilov , at paragraph 112 ). As a result, the focus of the inquiry must be on the Judge’s treatment of these precedents. What needs to be determined in this context is whether the

interpretation of the interplay between

section 42.1 and the other relevant provisions of the inadmissibility framework articulated in those precedents, accepted as good law by the Judge, should be disturbed on appeal, keeping in mind that these provisions are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament ( Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 , [2002] 2 S.C.R. 559, at paragraph 26 ; R. v. Penunsi , 2019 SCC 39 , [2019] 3 S.C.R. 91, 435 D.L.R. (4th) 65, at paragraph 36 ).

(1) The parties’ position [ 27 ] The Minister submits that the Judgment is inconsistent with the scheme of the Act as well as with appellate jurisprudence. He claims that, contrary to the true essence of the Act ’s inadmissibility framework, the Judgment permits the Board to exercise a relieving authority that Parliament has vested in him, and no one else, as per the operation of subsection 6(3) of the Act , that is the authority to relieve someone from the objective fact of their inadmissibility, when this is not contrary to the national interest.

According to that framework, when ministerial relief is available, inadmissibility becomes a two-step process where duress can only be raised as an excuse for a person’s conduct at the ministerial relief stage. [ 28 ] The Minister further claims that the Judgment is inconsistent with the scheme of the Act because it imports into the inadmissibility framework criminal law notions that have no direct application to it.

The legal defence of duress, he claims, is aimed at protecting persons charged with an offence from unconstitutional punishment, that is from punishment for morally involuntary actions, whereas inadmissibility is purely a finding that an individual falls within a class of persons defined by Parliament. As such, inadmissibility is not concerned with moral blameworthiness, is not imposed as a punishment for an individual’s actions, and does not engage one’s rights under the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter ), as would punishing an accused for his or her morally involuntary actions. According to the Minister, the Judge made a critical error in failing to account for these crucial distinctions. [ 29 ] Finally, the Minister asserts that his position on the jurisdictional issue is consistent with appellate jurisprudence, and in particular with the Supreme Court of Canada’s decision in Suresh v.

Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 S.C.R. 3 ( Suresh ) and the judgments of this Court in Agraira , Najafi v. Canada (Public Safety and Emergency Preparedness) , 2014 FCA 262 , [2015] 4 F.C.R. 162 ( Najafi) , and Canada (Citizenship and Immigration) v. Kassab , 2020 FCA 10 , [2021] 3 F.C.R. 149 , 441 D.L.R. (4th) 369 ( Kassab ). He further contends that the line of reasoning emanating from these judgments has been followed in a number of Federal Court cases, namely Stables v. Canada (Citizenship and Immigration) , 2011 FC 1319 , [2013] 3 F.C.R. 240 , 343

D.L.R. (4th) 510 (Stables), Saleh v. Canada (Citizenship and Immigration), 2010 FC 303, 363 F.T.R. 204 (Saleh) and Gazi v.

Canada(Citizenship and Immigration), 2017 FC 94, 2017 CarswellNat 134 (WL Can.) (Gazi). [30] According to the Minister, the common principle underlying this line of cases is that membership is to be interpreted broadly,while duress is a factor to be raised and considered personally by him in a subsequent application for ministerial relief under subsection42.1(1), making it thereby possible for those who can establish that their participation in a criminal organization was coerced to berelieved from the consequences of inadmissibility.

For the Minister, the line of jurisprudence followed by the Judge runs contrary to thatprinciple as it narrows the intended broad meaning of membership and impermissibly alters the two-step process laid out in the Act’sinadmissibility framework in matters where ministerial relief is available and does so at the expense of the safety and security ofCanadians, which are the two key considerations in determining whether such relief is warranted. [31] The respondent does not agree with any of these submissions.

He contends that the Minister’s position prevents a harmoniousreading of the Act, one that is both consistent, internally and externally, and predictable. He claims, in that regard, that although commonlaw defences are part of the criminal law, they do provide context for the

interpretation of the criminality and security provisions of theAct, as evidenced by the fact that they have been widely found applicable to inadmissibility matters for over 20 years, regardless of theavailability of ministerial relief. Moreover, the Minister’s approach, if accepted, would irrationally “forgive” nonculpable conduct andwould not serve any of the Act’s objectives, as articulated in

section 3 of the Act, since there would be nothing for the Minister to relieve. [32] The intervener, the Canadian Association of Refugee Lawyers, which supports the conclusion reached by the Judge, claims thatfrom the perspective of refugee protection, the Minister’s approach will effectively eliminate criminal law defences in the context ofinadmissibility determinations, while preserving them for exclusion determinations made pursuant to

Article 1F of the United NationsConvention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6 (the Convention) and

section 98 of the Act, despiteboth processes assessing identical legal elements, including, in most instances, identical alleged criminal conduct. Such an approach,according to the intervener, would run contrary to principles of statutory

interpretation and to binding case law; lead to inconsistentresults between inadmissibility determinations under sections 34, 35 and 37 of the Act and exclusion determinations under

section 98;and put Canada at odds with its international law obligations. [33] I will first examine the relevant provisions of the Act. I will then turn to the jurisprudence relied upon by the Minister. For easeof reference, relevant provisions not reproduced in the body of these reasons are set forth in the annex.

(2) The relevant statutory framework [34] The most fundamental principle of immigration law is that “non-citizens do not have an unqualified right to enter or remain in thecountry.” When a non-citizen is permitted to enter or remain in Canada, that permission is usually subject to conditions and the failure torespect them may give rise to an inadmissibility finding (Canada (Minister of Employment and Immigration) v. Chiarelli, (SCC), [1992] 1 S.C.R. 711, at page 733, 135 N.R. 161; Revell v.

Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2F.C.R. 355 (Revell), at paragraph 54). [35] Inadmissibility can be sought on various grounds ranging from national security to public health. These grounds are set out insections 34 to 42 of the Act (under “Division 4—Inadmissibility”). One of their objectives is to protect the safety of Canadian society(Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198 (Sittampalam), at paragraph21).

Sections 44 to 53 of the Act (“Division 5—Loss of Status and Removal”) outline a comprehensive scheme for the adjudication ofinadmissibility allegations and the enforcement of inadmissibility determinations. [36] Relevant to the present matter are sections 34 to 37 of the Act, which set out inadmissibility grounds aimed at “facilitat[ing] theremoval of [non-citizens] who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organizedcriminality, human or international rights violations, or terrorism” (see Sittampalam, at paragraph 21, cited in Stables, at paragraph 14). [37] Inadmissibility for organized criminality is provided for by subsection 37(1) of the Act.

According to that provision, a non-citizen is inadmissible either for being a member of a criminal organization or engaging in the activities of the organization, or forengaging, in the context of transnational crime, in activities such as people smuggling or money laundering. Subsection 37(1) reads asfollows: Organized criminality 37

(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for (

a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of apattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of anoffence punishable under

an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canadathat, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or (

b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of moneyor other proceeds of crime. [38] For non-citizens who are in Canada, inadmissibility proceedings normally begin when the Minister is provided with the report ofan immigration officer setting out the facts that led the officer to believe that a person is inadmissible.

Then, subject to two exceptionswhich have no application in the present matter, the Minister may refer the report to the ID for an admissibility hearing pursuant tosubsection 44(2) of the Act if he is of the opinion that the report is well-founded. If satisfied at the conclusion of the hearing that thepermanent resident or foreign national who is the subject of the report is inadmissible, paragraph 45(

d) of the Act directs the ID to makethe applicable removal order. [39] The authority to prepare such a report and to refer it to the ID is “permissive”, meaning that both the officer and the Ministerretain discretion to consider the particular circumstances of the person being investigated when determining whether to issue a report or

defer the matter to the ID (see B010 v. Canada (Citizenship and Immigration) , 2013 FCA 87 , [2014] 4 F.C.R. 326 , at paragraph 93 , reversed on other grounds by 2015 SCC 58 , [2015] 3 S.C.R. 704 ( B010 )). [ 40 ] Pursuant to

section 33 of the Act , it is sufficient, in order to establish inadmissibility under sections 34 to 37 , that there be “reasonable grounds to believe” that the facts giving rise to inadmissibility “have occurred, are occurring or may occur.” This relatively low evidentiary standard requires more than mere suspicion but less than proof on the balance of probabilities, meaning that such standard will be met “where there is an objective basis for the belief which is based on compelling and credible information” ( Mugesera v.

Canada (Minister of Citizenship and Immigration) , 2005 SCC 40 , [2005] 2 S.C.R. 100, at paragraph 114 ). [ 41 ] In proceedings brought before it under the Act , which include inadmissibility proceedings, the Board, by virtue of subsection 162(1) of the Act , has “sole and exclusive jurisdiction to hear and determine all questions of law and fact , including questions of jurisdiction” (my emphasis). [ 42 ] For its part,

section 42.1 of the Act empowers the Minister to declare that the matters referred to in

section 34 (security), subsection 37(1) (organized criminality), and part of

section 35 of the Act (human or international rights violations) do not constitute inadmissibility.

That power, which the Minister alone can exercise as per subsection 6(3) of the Act , permits the granting of an exemption from the application of these inadmissibility provisions provided the Minister is satisfied that the presence in Canada of the person seeking the exemption, or for whom it is considered, would not be contrary to the national interest. [ 43 ] In making that determination, the Minister, as per subsection 42.1(3), “may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.” In Agraira SCC , the Supreme Court held that the test is no longer focused solely on national security, as was the case prior to the amendments made in 1977 to the inadmissibility provisions of the Immigration Act, 1976 , S.C. 1976-77, c. 52, but is instead premised on a “broader array of domestic and international considerations constituting the ‘national interest’” ( Agraira SCC , at paragraphs 69–70). [ 44 ] That relieving power is meant to exempt non-citizens “who innocently contribute to or become members of terrorist [or, in the case at bar, criminal] organizations” from the consequences of inadmissibility notwithstanding proof that they have been associated with or have been members of such organizations ( Suresh , at paragraph 110 , cited in Agraira , at paragraph 63).

Relief under

section 42.1 is not available to all non-citizens but only to foreign nationals. It may be granted either on application by the foreign national or on the Minister’s own initiative.

Section 42.1 reads as follows: Exception — application to Minister 42 .1

(1) The Minister may, on application by a foreign national, declare that the matters referred to in

section 34 , paragraphs 35 (1)(

b) and (

c) and subsection 37(1) do not constitute inadmissibility in respect of the foreign national if they satisfy the Minister that it is not contrary to the national interest. Exception — Minister’s own initiative

(2) The Minister may, on the Minister’s own initiative, declare that the matters referred to in

section 34 , paragraphs 35 (1)(

b) and (

c) and subsection 37(1) do not constitute inadmissibility in respect of a foreign national if the Minister is satisfied that it is not contrary to the national interest. Considerations

(3) In determining whether to make a declaration, the Minister may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada. [ 45 ] Clearly, when one looks at the text of the relevant provisions, there is no express language limiting the Board’s jurisdiction in the manner proposed by the Minister.

The broad language of subsection 162(1) of the Act rather suggests that the Board’s exclusive authority to consider “all questions of law and fact, including questions of jurisdiction” in proceedings brought before it, is not so constrained. Nor is there express language in the Act granting the Minister exclusive authority to consider criminal law defences in the context of inadmissibility. [ 46 ] However, the Minister claims that when read, as it should be, in context and purposively,

section 42.1 does have a limiting effect on the Board’s jurisdiction. He submits that the concept of “membership” in sections 34 and 37 of the Act , which is not defined in the Act , was intended to be broadly interpreted mainly because the Minister retained discretion, and still does under

section 42.1 of the Act , to relieve innocent individuals caught by this broad

interpretation from the consequences of inadmissibility, including those who can establish that their participation in a criminal or terrorist organization was coerced. The Minister therefore contends that it cannot have been Parliament’s intention to allow the Board to circumvent that broad

interpretation through the consideration of criminal law defences aimed at excusing the conduct of such individuals, this task having been exclusively vested in him with a view that the availability of a relieving measure for coerced participation in the activities of such organizations be measured against the national interest and its two predominant features, national security and public safety. [ 47 ] It is true that the term “member” in sections 34 and 37 is to receive a broad

interpretation and that one of the contextual factors that allows for such an

interpretation is the Minister’s authority, under

section 42.1 , to provide relief from the consequences of inadmissibility. That being said, I have some difficulty with the Minister’s contention that the interplay between those provisions deprives the Board of any authority to consider duress when determining membership in a terrorist or criminal organization. Put differently, I am not satisfied that, whatever the applicable standard of review is, the contrary view, which is reflected in the prevailing Federal Court jurisprudence, should be interfered with. This is so for a number of reasons. [ 48 ] First, it strikes me that the Minister’s approach is at odds with a careful reading of Poshteh v. Canada (Minister of Citizenship

and Immigration) , 2005 FCA 85 , [2005] 3 F.C.R. 487 ( Poshteh ), rendered a few years only after the coming into force of the Act and relied upon by the Minister in the present proceedings. Although Poshteh involved membership of a minor in a terrorist organization, it contains, in my view, pronouncements of persuasive value that are applicable to any membership case. [ 49 ] Two issues were considered in Poshteh . The first was whether, irrespective of his age, there were reasonable grounds to believe that Mr. Poshteh had been a member of a terrorist organization, namely the Mujahedin-e-Khalq (the MEK). Mr.

Poshteh’s involvement with the MEK had been limited to distributing propaganda leaflets for a little over two years and ended just a few weeks before Mr. Poshteh’s 18th birthday. The Court, after noting the absence of a definition of the term “member” in the Act and that the courts had not established a precise and exhaustive definition of that term, endorsed the Federal Court’s view that “member” was to be interpreted broadly. That view stemmed from three main considerations: the absence of a formal test for membership; the fact that

section 34 deals with subversion and terrorism and thereby engages two prominent objectives of the Act , public safety and national security; and the possibility, in appropriate circumstances, of obtaining ministerial relief from the consequences of inadmissibility pursuant to former subsection 34(2) of the Act ( Poshteh , at paragraphs 27–29). [ 50 ] Poshteh was the Court’s first opportunity to consider how the term “member” is to be interpreted under the Act ’s amended inadmissibility regime, which in 2002 replaced the one that had been in place under the former Immigration Act , R.S.C., 1985, c.

I-2. [ 51 ] The Court rejected Mr. Poshteh’s contention that for there to be a finding of membership, evidence of a significant level of integration within an organization should be required. It found that such a test would be inconsistent with the broad

interpretation to be given to the term “member” ( Poshteh , at paragraph 31). On the facts, the Court concluded that the Federal Court judge had committed no error in deferring to the Board’s decision, despite Mr. Poshteh’s claim of limited involvement in the MEK’s activities. In so concluding, the Court underscored the fact that the assessment of the factors supporting or pointing away from a finding a membership fell “within the expertise of the Immigration Division” ( Poshteh , at paragraphs 36–38). [ 52 ] The second issue considered by this Court was whether Mr. Poshteh’s status as a minor was a relevant consideration under paragraph 34(1)(

f) of the Act and if so, what factors were to be taken into account in determining membership. Mr. Poshteh’s primary argument was that in the case of a minor, the term “member” in paragraph 34(1)(

f) ought to be interpreted narrowly so as to apply only to individuals directly involved in violence or holding leadership positions within a terrorist organization ( Poshteh , at paragraph 12). [ 53 ] This argument proved unsuccessful, the Court holding that lesser involvement by a minor could result in a finding of membership ( Poshteh , at paragraph 53). The Court first noted in that regard that, contrary to paragraph 36(3) (

e) of the Act , as it then read, there was no express exemption for minors in paragraph 34(1)(f). Because of that and because the Act expressly provides for individual assessments for admissibility, an exercise that involves “different considerations”, a person’s status as a minor is “simply a further consideration in the individual assessment made under paragraph 34(1)( f )” ( Poshteh , at paragraphs 40–45). [ 54 ] Then, the Court examined what considerations would be relevant when it comes to age.

It held that in such context, “matters such as whether the minor has the requisite knowledge or mental capacity to understand the nature and effect of his actions” would be relevant considerations in a membership determination made under paragraph 34(1)(f) ( Poshteh , at paragraph 47).

Such matters, the Court said, would require the Board , in assessing membership, to view the requisite knowledge or mental capacity of the minor “on a continuum” and, in the case of a young child, “to carefully consider the level of understanding of such a child” (see Poshteh , at paragraphs 48 and 51). [ 55 ] But even more importantly for the purposes of the present appeal, the Court went on to stress that it is open to the minor, in defending against a membership allegation, to raise whatever other factors they consider relevant to their circumstances, including “issues of duress or coercion” ( Poshteh , at paragraph 52).

Such issues did not apply to Mr. Poshteh’s situation since it was he who had sought to become a member of the MEK ( Poshteh , at paragraph 52). However, this determination is entirely consistent with the Court’s general statement at paragraph 45 that a membership claim, whether made against an adult or a minor, requires an individual assessment which engages different considerations.

Age, in the case of a minor, is one of them; duress or coercion is another. [ 56 ] In my view, Poshteh signals a clear understanding on the part of the Court that this broad range of considerations falls within the expertise of the Board. This is evidenced, inter alia , by the fact that the Court was satisfied that Mr. Poshteh’s age, including his knowledge and mental capacity, had been properly dealt with by the Board ( Poshteh , at paragraph 54). There is no reason to think that the Court would have adopted a different view had Mr. Poshteh also raised issues of duress or coercion.

In fact, as I have already indicated, it is quite clear that, despite an express reference to subsection 34(2) (now subsection 42.1(1) ), the Court considered that the defence of duress or coercion would have been available to Mr. Poshteh as part of the considerations to be assessed by the Board in determining the question of membership. It is equally clear that the defence of duress or coercion is not age-specific and that it would have been available to Mr.

Poshteh not because of his status as a minor (he was found to have achieved the requisite mental capacity) but because he was a foreign national facing inadmissibility based on allegations of membership in a terrorist organization. [ 57 ] Therefore, as I read Poshteh , factors such as mental capacity or engagement in the activities of the terrorist organization free of coercion were considerations that went to the heart of the membership determination in that particular case. [ 58 ] Although Poshteh concerned membership in the context of

section 34 of the Act , there is no principled reason to distinguish

section 34 from subsection 37(1) for the purposes of interpreting the notions of membership and participation in a terrorist or criminal organization ( Stables , at paragraphs 46–47 ). The Minister did not contend otherwise at the hearing of this appeal and for good reasons as none of the appellate decisions, he invokes to persuade this Court that his position on the jurisdictional issue should prevail, deals with subsection 37(1) membership issues. In fact, three of them— Suresh , Agraira and Najafi —are

section 34 membership cases whereas the fourth one— Kassab —is a

section 35 matter. [ 59 ] Therefore, in my view, Poshteh provides persuasive support for the line of cases relied upon by the Judge where duress was raised in inadmissibility matters open to ministerial relief and found to be applicable by both the Board and the Federal Court. This is the case even if the Court’s mention of duress at paragraph 52 of its reasons is to be considered obiter dictum . In other words, there is no reason to brush it aside. Rather, it ought to be read with the Court’s statement regarding the ID’s expertise in assessing factors that point

towards or away from membership. Moreover, the Court considered the ID’s finding that Mr. Poshteh’s involvement with the MEK hadnot been coerced as an indicator of membership in said organization. Taken together, those elements of this Court’s reasons provide aclear indication of its position as to whether duress is a relevant consideration in determining membership and whether or not it can beraised before the Board. [60] In an oft-quoted passage from R. v.

Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (Henry), the Supreme Court of Canada stated thatthe weight of obiter “decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviouslyintended for guidance and which should be accepted as authoritative” and that beyond the wider circle of analysis there will be non-binding “commentary, examples or exposition that are intended to be helpful and may be found to be persuasive” (Henry, at paragraph57). In other words, obiter dicta move along a continuum (R. v.

Prokofiew, 2010 ONCA 423, 100 O.R. (3d) 401, at paragraph 20, affdwithout reference to this point, 2012 SCC 49, [2012] 2 S.C.R. 639). [61] Viewed as obiter dictum, the passage in Poshteh concerning duress is, if not part of the “wider circle” of the analysis that led theCourt to conclude as it did (see paragraphs 56 and 57 of these reasons), at the very least a persuasive example of a factor the Board canconsider when determining membership.

Put another way, it has persuasive effect. [62] In sum, Poshteh unequivocally signals that the view adopted by the Judge regarding the Board’s jurisdiction to consider duress inan inadmissibility matter brought before it under paragraph 37(1)(

a) of the Act not only falls within a range of possible, acceptableoutcomes, but is also correct. [63] I pause to point out that in a significant number of cases, including recent ones, the Minister did not object, either before theBoard or the Federal Court, to duress being considered in determining membership. See for example: Gil Luces v. Canada (Public Safetyand Emergency Preparedness), 2019 FC 1200, 2019 CarswellNat 4900 (WL Can.); Konate v. Canada (Public Safety and EmergencyPreparedness), 2018 FC 129, 2018 CarswellNat 541 (WL Can.) (Konate); Castellon Viera v.

Canada (Citizenship and Immigration),2012 FC 1086, 418 F.T.R. 116; Thiyagarajah v. Canada (Citizenship and Immigration), 2011 FC 339, 2011 CarswellNat 902 (WLCan.); Belalcazar v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1013, 395 F.T.R. 291. [64] Of note is the Minister’s concession before the Supreme Court of Canada in B010 that the criminal law defences of duress andnecessity are “available in principle” in the context of inadmissibility proceedings brought under paragraph 37(1)(

b) of the Act (B010, atparagraph 73). This concession was made in response to one of the appellants’ arguments in that case that he should be able to raise thesedefences should he fall within that provision of the Act. Although the Supreme Court declined to decide the issue, it agreed with thisCourt that there was no merit to that appellant’s claim that the Board had failed to consider his defences of duress and necessity (B010, atparagraph 73). [65] The Minister asserted before the Judge that cases brought under paragraph 37(1)(

b) of the Act were to be distinguished fromthose initiated under paragraph 37(1)(a), implying thereby that duress could be considered by the Board in paragraph 37(1)(

b) matters,but not in matters initiated under paragraph 37(1)(a). The Judge rejected this contention, stating that there were no principled reasons fordrawing such a distinction as “[t]he defences of necessity and duress are both classified as excuses[ ] the underlying rationale [being]moral involuntariness” (Judgment, at paragraph 27). [66] Although the Minister has not directly challenged that finding, the positions he has taken in B010 and before the Judge illustratesome of the inconsistencies in his approach.

If duress can be raised before the Board in a matter brought under paragraph 37(1)(b), asconceded by the Minister in B010 and, for all intents and purposes, in this case at the judicial review stage, then there is indeed noprincipled reason for it to be unavailable in a paragraph 37(1)(

a) matter. In B010, the Supreme Court made it clear that the focus ofsubsection 37(1) of the Act, taken as a whole, was to deal with organized criminal activity pursuant to Canada’s international lawobligations and that paragraphs 37(1)(

a) and (

b) were to be characterized as “instances” of such activity (see B010, at paragraph 37). Italso made it clear that the concept of “organized criminality” underlying both provisions, is to be given an

interpretation consistent andharmonious with that given to “criminal organization” in subsection 467.1(1) of the Criminal Code, R.S.C. 1985, c. C-46 (see B010, atparagraphs 41–46). [67] As the respondent rightly puts it, there is no rational basis for carving out paragraph 37(1)(

a) and treating it differently fromparagraph 37(1)(

b) by making the defence of duress available before the Board in one instance but not in the other, as both provisionsserve a common purpose and should be interpreted and applied in light of the same criminal law concepts. [68] This leads me to my next point. In Vavilov, the Supreme Court stated that both statutory and common law will impose constraintson how and what an administrative decision maker can lawfully decide and will be relevant in assessing the reasonableness of thedecision (see Vavilov, at paragraphs 106–114).

As an example of such constraints, the Supreme Court gave that of “an immigrationtribunal” having to determine whether a person’s conduct constitutes a criminal offence under Canadian law in a matter raised undersections 35 to 37 of the Act. It held that “it would clearly not be reasonable” for that tribunal, in such instances, “to adopt aninterpretation of a criminal law provision that is inconsistent with how Canadian criminal courts have interpreted it” (Vavilov, atparagraph 112). [69] There are other instances where the criminal law was found to be relevant in interpreting provisions of the Act.

Such was thecase with the “serious non-political crime” exclusion clause in

Article 1F(

b) of the Convention, incorporated into

section 98 of the Act(Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R. 164, at paragraph 44; see also Feblesv. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at paragraphs 61–62). This was also the case with theissue of whether a conditional sentence could be assimilated to a “term of imprisonment” for the purposes of paragraph 36(1)(

a) of theAct (see Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at paragraphs 24–34). [70] Moreover, in Li v. Canada (Minister of Citizenship and Immigration), (FCA), [1997] 1 F.C. 235, (1996), 138D.L.R. (4th) 275 (C.A.), 1996 CarswellNat 1133 (WL Can.), this Court determined that when inadmissibility is based on a conviction foran offence committed outside Canada, the test of equivalence of an offence under foreign and Canadian law requires a comparison of notonly the essential elements of the Canadian and foreign offences, but also of the defences particular to those offences (Li, at paragraphs

18–19). [71] As we have just seen, the main purpose of subsection 37(1) is to deal with organized criminality in the immigration context. Thelanguage of that provision links inadmissibility to forms of conduct which, for the most part, are criminally prohibited.

See for examplethe following provisions of the Criminal Code: subsection 467.11(1) (“Participation in activities of criminal organization”), subsection279.01(1) (“Trafficking in persons”), and subsection 462.31(1) (“Laundering proceeds of crime”). [72] As the Federal Court rightly pointed out in Stables, membership in either a criminal or a terrorist organization “attract[s] criminalliability in Canada” (Stables, at paragraph 46). [73] It has been held, time and again, that inadmissibility proceedings are not criminal or quasi-criminal in nature.

As such, a findingthat a person is criminally inadmissible is not imposed as a “punishment” within the meaning of the criminal law and does not engage, inand of itself, Charter rights (see Revell, at paragraphs 41 and 54).

Be that as it may, Vavilov makes it clear, in my view, that in mattersraised under subsection 37(1) of the Act, the criminal law imposes on the Board, an “immigration tribunal”, constraints on how and whatit can lawfully decide (Vavilov, at paragraph 112). [74] In light of the foregoing, it would take much clearer language from Parliament to remove the availability of the consideration ofduress from the ambit of matters the Board might consider in an admissibility proceeding. One simply cannot infer such an intent fromthe mere presence of

section 42.1. [75] I pause to stress that it is not disputed that duress may be raised before the Board in matters where inadmissibility is not subject toministerial relief. As the respondent points out, the Minister could have initiate

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