2023 SCC 21, 2023 SCC 21

SUPREME COURT OF CANADA Citation: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 Appeal Heard: November 29, 2022 Judgment Rendered: September 27, 2023 Docket: 39855

Between: Earl Mason Appellant and Minister of Citizenship and Immigration Respondent And Between: Seifeslam Dleiow Appellant and 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 Coram: Wagner C.J. and Karakatsanis, Côté, Brown, * Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. 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. Earl Mason Appellant v. Minister of Citizenship and Immigration Respondent - and - 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. 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). 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), 2013SCC 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), (SCC), [1998] 1 S.C.R. 982; Lunyamila v. Canada (Public Safety andEmergency 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 Citizenshipand Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Canada Post Corp. v.

Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4S.C.R. 900; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [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 FCA52; R. v.

Wong, 2018 SCC 25, [2018] 1 S.C.R. 696; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [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; Pushpanathanv. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982; Society of Composers, Authors andMusic Publishers of Canada v. Entertainment Software Association, 2022 SCC 30; considered: Baker v.

Canada (Minister ofCitizenship and Immigration), (SCC), [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), ; referredto: Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674; Agraira v. Canada (PublicSafety 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), 2014FCA 113, [2015] 1 F.C.R. 335; Huruglica v.

Canada (Citizenship and Immigration), 2016 FCA 93, [2016] 4 F.C.R. 157; Seneca Collegeof Applied Arts and Technology v. Bhadauria, (SCC), [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’appelen matière de lésions professionnelles), (SCC), [1993] 2 S.C.R. 756; Ellis-Don Ltd. v. Ontario (Labour RelationsBoard), 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 IntelligenceReview Committee), (FCA), [1999] 4 F.C. 624; Al Yamani v. Canada (Solicitor General), (FC),[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 to42, 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.

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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.

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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 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. 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).

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 groundsunder s. 34(1)(e). The report alleged that since arriving in Canada, Mr. Dleiow had engaged in acts of violence against intimate partnersand other persons. Criminal charges flowing from these incidents were stayed, except for 3 charges: being unlawfully in a dwellinghouse with intent to commit an indictable offence, mischief under $5,000, and uttering threats to cause death or bodily harm. Mr. Dleiowpleaded guilty to these charges and received a conditional discharge.

A delegate of the Minister of Public Safety and EmergencyPreparedness 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 aground 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 ofCanada or another country, and that the act of violence in question must have some connection to a threat to the security of Canada.

Inthe ID’s view, Mr. Mason’s alleged conduct involved “mere criminal offences”, which “although very serious”, lacked “any element thatwould 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 theIAD, which allowed the Minister’s appeal, set aside the ID’s decision, and referred the matter back for a full hearing on the merits. TheIAD concluded that inadmissibility under s. 34(1)(

e) does not require a link to national security or the security of Canada. In the IAD’sview, “security” under s. 34(1)(

e) relates to “security in a broader sense”, namely, to ensure “that individual Canadians are secure fromacts 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 evidenceand concluded that Mr. Dleiow was inadmissible because he had engaged in violent acts against two intimate partners, which there werereasonable grounds to believe had endangered their safety. The ID based this conclusion on a guilty plea for acts relating to one intimatepartner, and on testimony and police occurrence reports relating to the other intimate partner. As a result, the ID ruled that Mr. Dleiowwas 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 theIAD’s

interpretation of s. 34(1)(

e) of the IRPA was unreasonable because it disregarded the structure of the Act and renderedmeaningless statutory provisions for inadmissibility based on criminality. In the Federal Court’s view, s. 34(1)(

e) requires a link tonational security. [23] The Federal Court — whose reasons were released before this Court released Vavilov — outlined how a reviewingcourt should evaluate the reasonableness of an administrative decision maker’s

interpretation of a statute. In the Federal Court’s view, areviewing court must ensure that an administrative decision maker did not overlook a very strong argument — a “knock-out punch”, thatis, 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 thebroader structure of the IRPA, thus undermining Parliament’s intent. In the court’s view, this structural argument was a “knock-outpunch”. 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 mostserious category of inadmissibility conduct falling below the thresholds for less serious categories of inadmissibility, and it woulddiscard Parliament’s choice under s. 36 of the IRPA to require a conviction when criminal conduct was committed in Canada. Section36(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 atleast 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 ofParliament 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, wouldconstitute 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 that, if committed in Canada, would constitute offences under

an Act of Parliament; (

c) committing

an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under

an Act of Parliament; or (

d) committing, on entering Canada, an offence under

an Act of Parliament prescribed by regulations. [ 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 and restored the ID’s decision. [ 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 ordered the matter be reconsidered on the merits by a different decision maker. The court also certified the same serious question of general importance. F. Federal Court of Appeal (Mr.

Mason and Mr. Dleiow), 2021 FCA 156 , [2022] 1 F.C.R. 3 (Stratas J.A., Rennie and Mactavish JJ.A. concurring) [ 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) as not requiring a nexus with 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 a reviewing court should not fashion its own yardstick and use it to measure what the administrator did, but should instead conduct “a preliminary analysis of the text, context and purpose of the legislation just to understand the lay of the land before they examine the administrators’ reasons” (para. 17).

The Court of Appeal also criticized the Federal Court’s “knock-out punch” approach in Mr. Mason’s case as involving disguised correctness review. [ 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 outcome. It rejected Mr. Mason’s argument that reading s. 34(1) (

e) without a nexus to national security is inconsistent with the broader statutory context. The court ruled that the IAD reasonably concluded that the conduct captured by s. 34(1) (e), which speaks of the danger posed to the “lives or safety” of persons in Canada, is only a small subset of what would be considered serious criminality under s. 36 of the IRPA . Sections 34 and 36 address two different matters — conduct and convictions, respectively (para. 55).

Section 36 is much broader, and applies to much non-violent criminal behaviour; s. 34(1) (

e) is narrower, and applies only to acts of violence. The court noted that when the IAD said that s. 34(1) (

e) is not absurdly broad because the conduct captured by the provision is “narrowly defined”, this could only mean that it interpreted “safety” in s. 34(1) (

e) as “something approaching the level of a threat to life, not just minor harm” (para. 57). The court stated that although the IAD did not address certain contextual arguments, this failure was not a fundamental gap and did not cause the court to lose confidence in its outcome so as to make its decision unreasonable. [ 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 (“ Refugee Protocol ”).

The Court of Appeal declined to entertain this argument because it viewed this as a new issue that should have been raised before the IAD, and because “certain background documents and other instruments needed to understand any international obligations” were not in evidence (para. 74). [ 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. It stated that “the issue of legislative

interpretation is best described as one where the issue is open to some debate” (para. 76).

[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 doesnot require proof of conduct with a nexus to “national security” or “the security of Canada”. The court therefore allowed the appeals, setaside the judgments of the Federal Court, and dismissed the applications for judicial review. IV. Issues [34] These appeals raise two issues:

(1) What is the appropriate standard of review of the administrative decisions atissue?

(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 thensummarize Vavilov’s guidance on conducting reasonableness review and apply that guidance to these cases. I conclude that theadministrative decision makers’ reasons involved failures of justification that made their decisions unreasonable. A. The Standard of Review [36] The first issue concerns the appropriate standard of review.

As this Court has noted, “[a] reviewing judge’s selectionand application of the standard of review is reviewable for correctness” (Northern Regional Health Authority v. Horrocks, 2021 SCC 42,at para. 10, citing Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47).An appellate court must “ste[p] into the shoes” of the lower court and focus on the administrative decision under review (Agraira, atpara. 46, citing Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247, per Deschamps J.,dissenting).

On this approach, an appellate court “accords no deference to the reviewing judge’s application of the standard of review”,but rather “performs a de novo review of the administrative decision” (Horrocks, at para. 10, citing D. J. M. Brown, with the assistanceof D. Fairlie, Civil Appeals (loose-leaf), at § 14:45). None of these principles was changed by this Court’s decision in Vavilov. As aresult, the issue is whether the Federal Court selected the correct standard of review and applied it properly (Agraira, at para. 47). [37] Before this Court, the appellant Mr.

Mason and the intervener the Canadian Association of Refugee Lawyers assertthat the standard of review is correctness. Citing pre-Vavilov jurisprudence, they say that because the appeal to the Federal Court ofAppeal involved a “serious question of general importance” certified under s. 74(

d) of the IRPA, it would be “incoherent” if the standardwere not correctness (A.F., at para. 49, citing Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982, at para. 43). The certified question regime under s. 74(

d) of the IRPA provides a mechanism for the FederalCourt to provide for a statutory appeal of a judicial review decision that raises a serious question that is dispositive of the appeal,transcends the interests of the parties, and raises an issue of broad significance or general importance (Lunyamila v. Canada (PublicSafety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674, at para. 46; Canada (Immigration and Citizenship) v. Laing,2021 FCA 194, at para. 11 ; see also Canada (Public Safety and Emergency Preparedness) v. XY, 2022 FCA 113, 89 Imm. L.R.(4th) 173, at para. 7). The appellant Mr.

Mason and the intervener the Canadian Association of Refugee Lawyers say that the certifiedquestion regime “weighs in favour of a correctness standard” and “evinces a particular concern that questions of general importance beappropriately resolved” (A.F., at para. 49, citing Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1S.C.R. 84, at para. 23; see also I.F., at paras. 4-10). [38] I respectfully disagree with this submission. In my view, the standard of review of the administrative decisions isreasonableness. This conclusion rests on three propositions:

(1) Vavilov established that the standard of review of the merits of anadministrative decision is presumptively reasonableness; (2) no established exception to the presumption of review for reasonablenessapplies in these cases; and (3) the certified question regime under s. 74(

d) of the IRPA does not displace the presumption ofreasonableness review and warrant recognition of a new category of correctness. I will address each point in turn.

(1) The Standard of Review Is Presumptively Reasonableness [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] 4S.C.R. 900, at para. 27). This presumption is rebutted in two types of situations, which together provide six categories of correctnessreview (Vavilov, at paras. 17 and 69; Society of Composers, Authors and Music Publishers of Canada v. Entertainment SoftwareAssociation, 2022 SCC 30, at para. 40).

The first type of situation is where the legislature has indicated that it intends a differentstandard or set of standards to apply, and the second type of situation is where the rule of law requires that the standard of correctness beapplied (Vavilov, at para. 17). Vavilov thus sets out a “general rule” of reasonableness review, “subject to limited exceptions” (D.

Mullan,“Reasonableness Review Post-Vavilov: An ‘Encomium for Correctness’ or Deference As Usual?” (2021), 23 C.L.E.L.J. 189, at p. 200). [40] The first situation, based on legislative intent, provides for two categories of correctness review: when the legislatureexplicitly prescribes the standard of review, and when it provides for an appeal from an administrative decision to a court, thus signallingthat appellate standards of review apply (Vavilov, at para. 17; Canada Post, at para. 27). [41] As for the second situation, Vavilov set out three categories of questions that the rule of law requires to be reviewedon a standard of correctness: constitutional questions, general questions of law of central importance to the legal system as a whole, andquestions related to the jurisdictional boundaries between two or more administrative bodies (para. 17; Canada Post, at para. 27). [42] At the time it was rendered, Vavilov thus recognized five categories of correctness review: (1) legislated standards ofreview; (2) statutory appeal mechanisms; (3) constitutional questions; (4) general questions of law of central importance to the legalsystem as a whole; and (5) questions related to the jurisdictional boundaries between two or more administrative bodies (paras. 17 and69). [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 would undermine legislative intent or the rule of law in amanner analogous to the five correctness categories” already identified (Society of Composers, at para. 27; Vavilov, at para. 70).

This

Court recently recognized a sixth category of correctness review in Society of Composers, a case involving copyright royalties for worksaccessed online: (6) “when courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute”(para. 28). The Court noted that both the Copyright Board and the courts have concurrent first instance jurisdiction regarding theinterpretation of the Copyright Act, R.S.C. 1985, c. C-42, which signals “a legislative intent for judicial involvement” (para. 31) andhighlights the need for consistent and definitive

interpretation of the Copyright Act to maintain the rule of law (paras. 33-35). [44] The presumption of reasonableness review and the limited circumstances in which it is rebutted provide acomprehensive framework for determining the standard of review. This framework brings simplicity, coherence, and predictability to thelaw on the standard of review, since reviewing courts need no longer conduct an unwieldy “contextual” inquiry to identify theappropriate standard of review, as had been the case in the period before Vavilov (Vavilov, at paras. 7 and 17).

(2) No Established Exception to the Presumption Applies [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 mechanismfrom an administrative decision to a court. The present cases proceeded to the Federal Court on applications for judicial review unders. 72(1) of the IRPA, which does not prescribe the standard of review. [47] Second, the standard of correctness is not required based on the rule of law. The proper

interpretation of s. 34(1)(

e) ofthe IRPA is not a “general question of law of central importance to the legal system as a whole” under Vavilov (paras. 58-62). Such“general questions of law” require uniform and consistent answers because of their impact on the administration of justice as a whole orfor other institutions of government (para. 59). Examples of general questions of law include questions with legal implications for manyother statutes or for the proper functioning of the justice system as a whole (paras. 59-61). It is not enough for the question to “touc[h] onan important issue” or to raise an issue of “wider public concern” (para. 61). Although the proper

interpretation of s. 34(1)(

e) is importantfor the affected persons and the proper administration of the IRPA, it does not affect the legal system or the administration of justice as awhole, have legal implications for many other statutes, or affect other institutions of government. Rather, the issues raised are particularto the

interpretation of the conditions for inadmissibility under s. 34(1)(e). Moreover, the proper

interpretation of s. 34(1)(

e) is not aconstitutional question or a question related to the jurisdictional boundaries between two or more administrative bodies, nor does itengage the correctness category recognized in Society of Composers. Thus, the rule of law does not require the Federal Court to reviewan administrative

interpretation of s. 34(1)(

e) for correctness.

(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 reviewand warrant a new category of correctness. As I will explain, the Federal Court’s certification of a question for appeal to the FederalCourt of Appeal provides for a statutory appeal of the Federal Court’s decision to the Federal Court of Appeal, but it does not change thestandard of review to be applied by either court. [49] To begin with, it is obvious that the Federal Court’s decision to certify a serious question of general importance unders. 74(

d) does not affect the standard of review to be applied by the Federal Court itself on the application for judicial review under s.72(1) of the IRPA. The Federal Court does not certify the question until it is rendering its judgment on the application for judicial review.Section 74(

d) provides that an appeal to the Federal Court of Appeal may be made “only if, in rendering judgment, the [Federal Court]certifies that a serious question of general importance is involved and states the question”. In effect, the certified question procedureplays a gatekeeping role by requiring the matter to meet a threshold of importance to merit an appeal to the Federal Court of Appeal. Asthis Court has stated, the certified question “may be the ‘trigger’ by which an appeal is permitted”, but the “subject of the appeal is stillthe judgment itself, not merely the certified question” (Kanthasamy v.

Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3S.C.R. 909, at para. 44, citing Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817,at para. 12).

Thus, the certified question regime does not amount to “rare and exceptional circumstances” in which the Federal Courtapplying reasonableness review would undermine legislative intent or the rule of law in a manner analogous to the existing correctnesscategories (Society of Composers, at paras. 27 and 41). [50] The issue is then whether the certification of a serious question of general importance requires correctness review bythe Federal Court of Appeal or this Court, either because of a legislative intent to apply correctness review or because it is required bythe rule of law.

In my view, the answer is no. [51] As a matter of precedent, this Court has concluded in the immigration context that “[d]espite the presence of acertified question, the . . . standard of review is reasonableness” (Kanthasamy, at para. 44; see also Baker, at para. 62). Vavilov does notrequire that conclusion to be revisited. Certification of a question under s. 74(

d) of the IRPA does not signal that the legislature intendedthat appellate courts apply correctness review. As noted above, the Federal Court of Appeal’s task in an appeal from a decision of theFederal Court in an application for judicial review — including in an appeal based on a certified question — is to determine whether theFederal Court identified the appropriate standard of review, and then to decide whether it applied that standard properly (Agraira, atparas. 45-47; Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50, 468 D.L.R. (4th) 358, at para. 38, citingHorrocks, at para. 10).

The Federal Court of Appeal must “step into the shoes” of the Federal Court and apply the same standard ofreview that it should have applied (Galindo Camayo, at para. 38, citing Kanthasamy, at para. 44). Here, the Federal Court had tojudicially review the administrative decisions for reasonableness. The Federal Court of Appeal, when stepping into the shoes of theFederal Court on the certified question, had to do likewise.

As a result, the certified question regime neither rebuts the presumption ofreasonableness, nor alters the Court of Appeal’s task when it hears appeals from first instance judicial review decisions. [52] What is more, recall that Vavilov itself involved an appeal to the Federal Court of Appeal on a certified question ofgeneral importance under s. 22.2(

d) of the Citizenship Act, R.S.C. 1985, c. C-29, which provides — in terms materially identical to s.74(

d) of the IRPA — that “an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies thata serious question of general importance is involved and states the question”. This Court in Vavilov reviewed the administrative decision

at issue for reasonableness, noting that there was “no indication that the legislature intended a standard of review other than reasonableness to apply” (para. 170). [ 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 (para. 47). Treating s. 74(

d) as justifying correctness review would effectively reintroduce a “contextual” approach to the standard of review — with the certification of a serious question of general importance being a “contextual” factor suggesting correctness — and thus would revive the approach that Vavilov eliminated because it created “uncertainty” and was “unwieldy” (para. 7; see also P. Daly, “Unresolved Issues after Vavilov ” (2022), 85 Sask. L. Rev. 89, at pp. 91-92 ( Vavilov is “an exercise in simplification and clarification” that “excised” the “‘vexing contextual factors’ . . . from the standard of review selection exercise”.)).

(4) Conclusion [ 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 comments briefly on the methodology of reasonableness review conducted by the courts below. The following

section then applies reasonableness review to the two administrative decisions at issue.

(1) Vavilov ’s Guidance on Reasonableness Review of Administrative Decisions [ 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]hat distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place” (para. 15).

Reasonableness review is thus concerned with both the administrator’s decision- making process and the outcome (paras. 83 and 87; see also Canada Post , at para. 29). [ 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). [1] The purpose of reasons is to “demonstrate ‘justification, transparency and intelligibility’” (para. 81).

Reasons are “the means by which the decision maker communicates the rationale for its decision” (para. 84). This Court emphasized that “it is not enough for the outcome of a decision to be justifiable . Where reasons for a decision are required, the decision must also be justified , by way of those reasons, by the decision maker to those to whom the decision applies” (para. 86 (emphasis in original)). [ 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 (para. 84). It must “begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion” (para. 84, citing D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286).

As noted by Professor David Mullan, the “reasons first” approach “underscores a commitment to deference” and requires that reasons are “the principal lens through which the exercise of reasonableness review takes place” (p. 202).

Thus, as he explains, “the starting or focal point for the conducting of truly deferential reasonableness review should be the reasons provided by the decision-maker” (p. 215; see also Daly (2022), at pp. 108-10). [ 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 need not “include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” (para. 91).

The reviewing judge must read the administrator’s reasons “holistically and contextually” (para. 97), “in light of the history and context of the proceedings in which they were rendered”, including “the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body” (para. 94). Reasons must be read “in light of the record and with due sensitivity to the administrative regime in which they were given” (para. 103). Such factors may “explain an aspect

of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency” (para. 94). [ 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; see also Wilson v. Atomic Energy of Canada Ltd. , 2016 SCC 29 , [2016] 1 S.C.R. 770, at para. 27 , citing D.

Mullan, “Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action — The Top Fifteen!” (2013), 42 Adv. Q. 1, at pp. 76-81). Because “[t]he role of courts in these circumstances is to review ”, they should, as a general rule, “refrain from deciding the issue themselves” ( Vavilov , at para. 83 (emphasis in original)). A reviewing court should not create its “own yardstick and then use [it] to measure what the administrator did” (para. 83, and Canada Post , at para. 40, both citing Delios v. Canada (Attorney General) , 2015 FCA 117 , 100 Admin. L.R. (5th) 301, at para. 28 ).

Nor should a reviewing court ask “what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem” ( Vavilov , at para. 83; see also Canada Post , at para. 40).

Rather, a “reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable” ( Vavilov , at para. 83). [ 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, it is “a robust form of review” (para. 13; see also paras. 12, 67 and 138), one that highlights “the need to develop and strengthen a culture of justification in administrative decision making” (para. 2). (

c) Indicators of Unreasonableness [ 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 given the legal and factual constraints bearing on the decision (para. 101). A reviewing court need not categorize unreasonableness as falling into one category or another. They are simply a helpful way of describing how a decision may be unreasonable (para. 101). (

i) Failures of Rationality in the Reasoning Process [ 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 “reveal[s] that the decision was based on an irrational chain of analysis” (para. 103). A reviewing court “must be able to trace the decision maker’s reasoning without encountering any fatal flaws” in the decision maker’s “overarching logic” (para. 102).

It must “be satisfied that the decision maker’s reasoning ‘adds up’” (para. 104). (ii) Failures of Justification in Light of the Legal and Factual Constraints [ 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 the decision” (para. 105). The legal and factual context “operate as constraints on the decision maker in the exercise of its delegated powers” (para. 105).

The burden of justification varies with the circumstances, including the wording of the relevant statutory provisions, the applicable precedents, the evidence, the submissions of the parties, and the impact of the decision on the affected persons. The greater the interpretive constraints in a given case, the greater the burden of justification on the decision maker in deviating from those constraints (see M. Popescu, “L’arrêt Vavilov : à la recherche de l’équilibre perdu entre la primauté du droit et la suprématie législative” (2021), 62 C. de D. 567, at p. 603).

Examples include the seven non-exhaustive constraints set out below. As was highlighted in Vavilov , “[t]hese elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached” (para. 106). 1. The Governing Statutory Scheme [ 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” (para. 110). Narrower and more precise language imposes a greater constraint on the decision maker, while “broad, open-ended or highly qualitative language” affords greater flexibility (para. 110). What matters is whether the decision maker has “properly justified its

interpretation of the statute in light of the surrounding context” (para. 110). 2. The Principles of Statutory

Interpretation [ 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 decision would have been’” (para. 116). Instead, the court “must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached” (para. 116). [ 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 focusses on the text, context, and purpose of the statutory provision. The decision maker must demonstrate in its reasons that it was alive to those essential elements (para. 120). The omission of a minor aspect of the text, context, or purpose is unlikely to undermine the decision as a whole: omissions are not “stand-alone grounds for judicial intervention” (para. 122). In each case, “th

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