2020 FC 927, 2020 FC 927

IMM-6722-19 2020 FC 927 Tian Ren Zhang ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Zhang v. Canada (Citizenship and Immigration) Federal Court, Annis J.—Ottawa, June 18; September 24, 2020.

Citizenship and Immigration — Status in Canada — Permanent Residents — Humanitarian and Compassionate Considerations — Judicial review of decision by Immigration and Refugee Board of Canada, Immigration Appeal Division (IAD or Board) dismissing applicant’s appeal, request under Immigration and Refugee Protection Act, s. 68(1) for stay of removal order on basis insufficient H&C considerations to warrant special relief in light of circumstances of case — Applicant, citizen of China, convicted of forcible confinement — Deportation order issued — Applicant seeking special relief pursuant to Act , ss. 67(1) (c), 68(1) on H&C grounds — IAD questioning applicant’s expression of remorse, risk of reoffending — Concluding applicant not facing undue hardship if returned to China — Applicant arguing, inter alia, that IAD dismissed stay request without consideration of merits, relied on impermissible “general deterrence” line of reasoning — Also submitting that tests applied under ss. 67(1)(c), 68(1) having to reflect sliding scale of level of meeting factors determined in Ribic v.

Canada (Minister of Employment and Immigration) in order to ensure their distinct application — Whether same considerations to reject appeal under s. 67(1)(

c) applying equally under s. 68(1) to reject stay of removal — Whether IAD erring in law in exercise of its discretion under s. 67(1)(c) — Whether IAD erring in law in referring to “general deterrence” reasoning to reject stay of removal request under s. 68(1) — Board’s decisions justified — Principles governing application of s. 68(1) having to be distinguished from those governing s. 67(1)(c) — Ribic factors related to public safety, security, not equitable hardship factors — Board unable to provide rational explanation of differential standards distinguishing ss. 67(1)(c), 68(1) — Absence of statement of purpose distinguishing application of provisions constraining decision maker — Supreme Court’s endorsement in Canada (Citizenship and Immigration) v.

Khosa (Khosa) of Ribic factors distinguished — Khosa failing to consider implications of phraseology “all the circumstances of the case” carried forward into amended ss. 67(1)(c), 68(1) — Neither Board nor courts recognizing that “risk of reoffending” is purpose of countervailing risk factors constraining granting of special equitable relief — Likelihood or probability of not reoffending is Parliament’s intended failsafe measure limiting the granting of special relief — Likelihood of reoffending overriding H&C evidence of exemption from deportation, defining factor differentiating application of ss. 67(1)(c), 68(1) — Different range of standards of proof to be expected for ss. 67(1)(c), 68(1) — Khosa also enshrining Ribic’s methodology of weighing each factor separately, deciding case on how factors balancing out as its

interpretation of s. 67(1)(c) — Such broad interpretive precedential conclusion neither “justified” nor “justifiable” in light of Canada (Minister of Citizenship and Immigration) v. Vavilov — Khosa not conducting textual, contextual or purposive

interpretation of amended provisions when adopting in wholesale fashion pre-amendment Ribic factors in application of s. 67(1)(c) — This providing reasonable basis to distinguish Khosa — Appellants first having to demonstrate entitlement to special equitable relief — Parliament not intending that appellant convicted of serious criminality could succeed on appeal if Board not first convinced that equitable case proven — Practical reasons existing to support

interpretation that ss. 67(1)(c), 68(1) be evaluated using methodology that separates assessment of H&C claim from public safety, security issues — Two-step contingent process recognizing that public safety trumping H&C considerations when risk of reoffending likely — Applicant having no reasonable prospect of demonstrating sufficient H&C claim — Board’s reasoning not expressing form of “general deterrence” — Rather, Board expressing novel form of reasoning in application of Ribic factors — Questions certified — Application dismissed.

This was an application for judicial review of a decision by the Immigration Appeal Division of the Immigration and Refugee Board of Canada (IAD or Board) dismissing the applicant’s appeal and request under subsection 68(1) of the Immigration and Refugee Protection Act ( Act ) for a stay of a removal order. The Board dismissed the applicant’s appeal and request for a stay of a removal order on the basis that there were not sufficient humanitarian and compassionate (H&

C) considerations to warrant special relief in light of all the circumstances of the case. The applicant, a citizen of China, became a permanent resident when he was 12 years old. He was convicted of forcible confinement against a schoolmate he suspected was pursuing his then girlfriend. He received a conditional sentence order (CSO) of 23 months. The conditions included that he remain for 12 months under house arrest except when attending school, accompanied by a family member, or with special written permission from his CSO supervisor.

The Immigration Division held an admissibility hearing and issued a deportation order. Before the IAD, the applicant sought special relief pursuant to paragraph 67(1) (

c) and subsection 68(1) of the Act on H&C grounds. The applicant requested that the appeal be allowed, and a stay of the removal so that the applicant had more time to demonstrate that he was rehabilitated and established. The IAD noted the positive elements of the applicant’s potential for rehabilitation and level of remorse. However, the IAD called into question the applicant’s expression of remorse due to conflicting and equivocal evidence concerning his responsibility for the incident. There were also concerns about the applicant’s efforts to lower his risk of reoffending.

The IAD was not convinced that he would not reoffend non-violently or with less violence if similar situations presented themselves. After considering the traditional H&C factors, the IAD’s overall conclusion was that the applicant would not face any undue hardship should he be returned to China. The IAD further concluded that, in the particular circumstances of this case, a stay of the removal order would do little to serve the objectives of the Act . The applicant argued, inter alia , that the IAD dismissed the stay request

without any real consideration of the merits, and relied on an impermissible “general deterrence” line of reasoning. The applicant also submitted that the tests applied under paragraph 67(1) (

c) and subsection 68(1) of the Act must reflect a sliding scale of the level of meeting the factors determined in Ribic v. Canada (Minister of Employment and Immigration) , in order to ensure their distinct application. The main issues were whether the same considerations to reject an appeal under paragraph 67(1)(

c) apply equally under subsection 68(1) to reject a request to stay a removal; whether the IAD erred in law in the exercise of its discretion under paragraph 67(1) (

c) of the Act ; and whether the IAD erred in law in referring to “general deterrence” reasoning to reject the stay of removal request under subsection 68(1) of the Act . Held , the application should be dismissed. The Board’s decisions pursuant to paragraph 67(1) (

c) and subsection 68(1) of the Act were justified based on an internally coherent and rational chain of analysis. The significant issue was whether the Board erred in its reasons for refusing to accept the agreement to stay the applicant’s removal based on wrong legal principles under subsection 68(1) . The principles governing the application of subsection 68(1) cannot be confidently assumed without knowing how they are to be distinguished from those governing paragraph 67(1) (c). The Ribic factors do not concern equitable hardship, but are countervailing factors relating to public safety and security. Describing them as equitable hardship factors is not in accordance with the modern

interpretation of sections paragraph 67(1)(

c) and subsection 68(1). They fall within the wording “in light of all the circumstances” that must warrant equitable relief. The Board was unable to provide a rational explanation of the differential standards distinguishing paragraph 67(1) (

c) and subsection 68(1) of the Act . The absence of a statement of a purpose or defined legal standard distinguishing the application of the two provisions represents a constraint on the decision maker. There is no coherent and rational chain of analysis of these provisions that justifies the same reasoning applying to two distinct provisions that allow for different relief outcomes. The Supreme Court’s endorsement in Canada (Citizenship and Immigration) v. Khosa ( Khosa ) of the Ribic factors was distinguished herein. Khosa cannot be interpreted as a wholesale endorsement of the Ribic factors, and certainly not for their application to the

interpretation of paragraph 67(1) (

c) and subsection 68(1) of the Act . The original phraseology “all the circumstances of the case”, found in the Immigration Appeal Board Act , S.C. 1966-67, was carried forward into the 2001 amended paragraph 67(1) (

c) and subsection 68(1) of the Immigration and Refugee Protection Act . Khosa , in interpreting paragraph 67(1) (c), failed to consider the implications evoked by Parliament’s continued reference to this phraseology. The Supreme Court considered the Ribic factors in Chieu v. Canada (Minister of Citizenship and Immigration) ( Chieu ). Chieu ’s sanctioning of the Ribic factors is its principal continuing legacy.

The legacy issue is the continued endorsement of its methodology consisting of a global assessment of each of the seven specific Ribic factors, and then weighing them all together to determine the outcome of the appeals. Neither the Board nor the courts have fully recognized that the “risk of reoffending” is the purpose, or

summary, of all the countervailing risk factors constraining the granting of special equitable relief. A likelihood or probability of not reoffending is Parliament’s intended failsafe measure limiting the granting of special relief under either paragraph 67(1) (

c) or subsection 68(1) . The case law has not come to grips with Parliament’s intention to establish the likelihood of not reoffending as the limitation on granting the appeals for both paragraph 67(1)1(

c) and subsection 68(1). A likelihood of reoffending logically overrides even the strongest and most compelling of H&C evidence of a special exemption from deportation. For this reason, the likelihood of reoffending is also the defining factor that differentiates the application of the two provisions. “Likelihood” as the standard of proof of reoffending does not come into conflict with the Ribic factor of “a possibility of rehabilitation”. Bearing in mind that the same factors apply to paragraph 67(1) (

c) and subsection 68(1) , a different range of standards of proof is to be expected. The differentiation of the two provisions relates to scaling the risk of reoffending. By simply adopting Chieu ’s conclusions for its purposes, the Supreme Court in Khosa enshrined the Ribic factors in the amended paragraph 67(1) (

c) and subsection 68(1) . This extended to Ribic ’s methodology of weighing each factor separately, and then cumulatively deciding the case on how the factors balance out as its

interpretation of paragraph 67(1)(c). When considering and assessing the majority reasons in Khosa against the backdrop of the constraints in Canada (Minister of Citizenship and Immigration) v. Vavilov , drawing such a broad interpretive precedential conclusion is neither “justified” nor “justifiable”. The Supreme Court in Khosa was not focused in any manner on conducting a holistic

interpretation of the amended formulation of paragraph 67(1)(

c) and subsection 68(1). The Supreme Court’s

interpretation of paragraph 67(1)(

c) in Khosa was fixated on statements regarding the “sufficiency” of the evidence in the exercise of the Board’s discretionary findings of fact. No attempt was made to conduct a textual, contextual or purposive

interpretation of the amended provisions, when simply adopting in wholesale fashion the pre-amendment Ribic factors in the application of paragraph 67(1) (c). The Supreme Court’s limited focus on the issue of the review of factual assessments in administrative law provides a reasonable basis to distinguish Khosa , by limiting it to its specific ruling regarding the review of factual assessments. These grounds extend to the Court’s apparent wholesale adoption of the Ribic methodology. The scheme of paragraph 67(1)(

c) and subsection 68(1) is clear. Parliament intended that appellants first demonstrate their entitlement to special equitable relief in accordance with the same reasoning applying to subsection 25(1) of the Act . Equitable relief may be granted only if first proven, and second, if the safety and security factors do not prohibit it, in which case the two classes of factors must be assessed against each other.

It would not be reasonable to conclude that Parliament intended that an appellant convicted of serious criminality could succeed on the appeal, or a request for a stay of removal, if the Board was not first convinced that an equitable case had been proven. There are a number of other practical reasons supporting an

interpretation that paragraph 67(1)(

c) and subsection 68(1) be evaluated using a methodology that separates the assessment of the H&C claim from issues of public safety and security. Contextually, the only apparent reasonable

interpretation of the two provisions is based upon ensuring reoffending not occur from the perspective of the determination when that assessment is made. For the appeal under paragraph 67(1) (c), the appellant must provide sufficient evidence to ensure no reoffending at the time of the disposition of the appeal. For the stay of removal under subsection 68(1) , the appellant must provide sufficient evidence supporting the necessary assurance at the time of the disposition of the stay request of not reoffending upon completion of the period of the stay granted.

The sufficiency of evidence of not reoffending must be proven by the appellant as a probability or likelihood. In the language of paragraph 67(1)(

c) and subsection 68(1), Parliament set up the order of consideration of determinative factors as first relating to H&C factors broadly defined, and stipulated that the second condition that special relief should only be granted, i.e. warranted, “in light of all of the circumstances of the case.” This

interpretation of the two-step contingent process recognizes that public safety must trump H&C considerations when the risk of reoffending is a likelihood. This is the only apparent

interpretation that coherently represents Parliament’s intention in enacting two identical equitable relief provisions and that provides a reasonable foundation to rationally, consistently and fairly justify their different outcomes. The applicant’s appeal and request for a stay in the case at bar was rejected. The applicant had no reasonable prospect of demonstrating a

sufficient H&C claim. His circumstances did not evoke any special compassionate or humanitarian emotion or ground for special relieffrom deportation. The Board’s reasoning in this matter was not in the nature of expressing a form of “general deterrence” againstinadmissible persons committing serious crimes. There was no suggestion of sending a message to the community, or preventing thesetypes of crimes from occurring in the first place.

Rather, the Board was expressing a novel form of reasoning in the application of theRibic factors, reflecting the reasonably anticipated associated negative emotional reaction of a well-informed compassionate Canadianassessing the granting of an equitable concession allowing the applicant to remain in Canada having regard to the evidence proving theapplicant’s criminal offences. Questions were certified as to (1) whether Khosa is distinguishable on the basis that the Supreme Court did not conduct an

interpretationin accordance with Rizzo & Rizzo Shoes Ltd. (Re) with the intention of interpreting paragraph 67(1)(

c) and subsection 68(1); (2) whetherappellants can succeed under either paragraph 67(1)(

c) or subsection 68(1) if unable to first establish a positive H&C claim on the samebasis as a claim made pursuant to subsection 25(1) of the Act; (3) whether appellants can succeed on an appeal pursuant to paragraph67(1)(

c) of the the Act, if unable to prove as a likelihood that they will not reoffend, and further in light of a positive assessment of therelevant equitable and public safety and security factors; and (4) whether appellants can succeed on a request to stay their removalpursuant to subsection 68(1) of the Act, if unable to prove as a likelihood that they will not reoffend after completion of the stay ofremoval, and further in light of a positive assessment of the relevant equitable and public safety and security factors. STATUTES AND REGULATIONS CITED Criminal Code, R.S.C., 1985, c. C-46, s. 266.

Immigration Act, R.S.C., 1985, c. I-2, s. 70(1)(b). Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(h), 25(1), 36(3)(c), 66, 67, 68, 69, 70(1)(b), 72(1). Immigration Appeal Board Act, S.C. 1966-67, c. 90, ss. 11, 15. CASES CITED APPLIED: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418; Ribic v. Canada (Minister ofEmployment and Immigration), [1985] A.B.D. No. 4 (QL), [1985] I.A.D.D. No. 4 (I.R.B.); Chieu v. Canada (Minister of Citizenship andImmigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65, 441 D.L.R.(4th) 1; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Chirwa v. Canada (Minister ofCitizenship and Immigration) (1970), 4 I.A.C. 338, [1970] I.A.B.D. No. 1 (QL) (I.R.B.). DISTINGUISHED: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Li v. Canada (Citizenship and Immigration), 2009FC 992, 84 Imm. L.R. (2d) 271. CONSIDERED: Barrinetos v. Canada (Public Safety and Emergency Preparedness), (I.R.B.); Malhi v. Canada (Public Safety andEmergency Preparedness), (I.R.B.); Oneil v.

Canada (Public Safety and Emergency Preparedness), (I.R.B.); Singh v. Canada (Citizenship and Immigration), 2020 FC 328; Sananikone v. Canada (Minister of Citizenship andImmigration), [2001] I.A.D.D. No. 1950 (QL) (I.R.B.); Rajagopal v. Canada (Public Safety and Emergency Preparedness), 2007 FC523; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Tahhan v. Canada (Citizenship and Immigration), 2018 FC 1279;Khosa v. Canada (Minister of Citizenship and Immigration), 2005 FC 1218, 266 F.T.R. 138, revd 2007 FCA 24, [2007] 4 F.C.R. 332;Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Komolafe v. Canada (Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th)267; Pryce v. Canada (Citizenship and Immigration), 2020 FC 377. REFERRED TO: Saroya v. Canada (Citizenship and Immigration), 2015 FC 428; Doe v. Canada (Public Safety and Emergency Preparedness), 2016 FC518, 42 Imm. L.R. (4th) 71; Archibald v. Canada (Minister of Citizenship and Immigration) (1995), 95 F.T.R. 308, 29 Imm L.R. (2d)259 (F.C.T.D.); De Campos Gregorio v.

Canada (Citizenship and Immigration), 2020 FC 748; Ramirez Velasco v. Canada (Citizenshipand Immigration), 2019 FC 543; Lau v. Canada (Citizenship and Immigration), 2016 FC 1184; Moffat v. Canada (Citizenship andImmigration), 2019 FC 896, [2019] 4 F.C.R. 331; Maple Lodge Farms Ltd. v. Canada (Food Inspection Agency), 2017 FCA 45, 411D.L.R. (4th) 175; Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229. AUTHORS CITED Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Google English dictionary provided by Oxford Languages, online: www.google.com, “warrant”. APPLICATION for judicial review of a decision by the Immigration Appeal Division of the Immigration and Refugee Board of Canada( ) dismissing the applicant’s appeal and request for a stay of a removal order. Application dismissed. APPEARANCES Deanna Okun-Nachoff for applicant.

Edward Burnet for respondent. SOLICITORS OF RECORD McCrea Immigration Law, Vancouver, for applicant. Deputy Attorney General of Canada for respondent. The following are the final reasons for judgment and judgment rendered in English by Annis J.: I. Introduction [1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act orIRPA) for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board of Canada (IAD orBoard), dated October 24, 2019 [Zhang v.

Canada (Public Safety and Emergency Preparedness), ] (the Decision).The Board dismissed the applicant’s appeal and request for a stay of a removal order on the basis that there were not sufficienthumanitarian and compassionate (H&

C) considerations to warrant special relief in light of all the circumstances of the case. [2] Despite almost 20 years after coming into force, this is the first decision to interpret paragraph 67(1)(

c) and subsection 68(1) ofthe IRPA in accordance with Driedger’s “modern principle” described in Driedger, Construction of Statutes, 2nd ed. (Toronto:Butterworths, 1983), at page 87. The Supreme Court of Canada adopted the modern principle of

interpretation in Rizzo & Rizzo ShoesLtd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418 (Rizzo Shoes), at paragraph 21. [3] The results of a holistic

interpretation of the provisions are dramatic. It turns out that they describe a very different scheme inParliament’s intention of providing special relief for inadmissible appellants. The scheme largely displaces strict adherence to the factorsand the methodology of their application laid out in 1985 in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D.No. 4 (QL), [1985] I.A.D.D. No. 4 (I.R.B.) (Ribic), which is discussed at length below. [4] The following remarks, however, are specific to the granting of special relief to inadmissible appellants on grounds of seriouscriminality.

The Board described the factors in Ribic (the Ribic factors) with a view to providing equitable relief relating to seriouscriminality. The comments below, to the extent that they may apply in other areas of special relief granted to inadmissible appellants,must be interpreted with respect to the specific factual circumstances they describe, e.g., misstatements. II. Facts [5] The applicant, born on February 23, 1999, is a citizen of China. On July 28, 2011, he landed as a permanent resident of Canada,becoming a permanent resident when he was 12 years old.

He returned to China in 2011 before returning to Canada in 2014, completinghis high school education in Canada. [6] On 9 March 2017 after turning 18, the applicant and three of his schoolmates committed an offence (the Offence) against anotherschoolmate (the victim). The applicant was convicted on August 22, 2018, of forcible confinement pursuant to

section 266 of theCriminal Code of Canada [R.S.C., 1985, c. C-46]. He received a Conditional Sentence Order (CSO)—a form of incarceration—of 23months. The conditions included that he remain for 12 months under house arrest 24 hours a day, 7 days a week, except when: attendingschool, accompanied by his parents, sister or brother-in-law, or with special written permission from his CSO Supervisor. [7] On May 14, 2019, the Immigration Division (ID) held an admissibility hearing, issuing a deportation order on the same date. Theapplicant appealed to the IAD. He did not appeal the legality of the deportation order, but sought special relief pursuant to paragraph67(1)(

c) and subsection 68(1) of the IRPA on H&C grounds. In closing submissions, applicant’s counsel, after requesting that the appealbe allowed, requested a stay of the removal so that the applicant had more time to demonstrate that he was rehabilitated and established. [8] The Minister’s counsel indicated that she did not oppose the stay of removal in order to allow the applicant “to show us that he ison that road firmly, in terms of rehabilitation”. III.

The IAD decision [9] The IAD stated that the test to be applied in the exercise of its jurisdiction is that it must be satisfied that at the time of the appeal,taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionateconsiderations warrant special relief in light of all the circumstances of the case. [10] The Board described the considerations in granting special relief stated in Ribic and endorsed by the Supreme Court of Canadain Chieu v.

Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 (Chieu), noting that they vary with eachindividual, but can include [at paragraph 9]:

a) the seriousness of the offence or offences leading to the removal order;

b) the possibility of rehabilitation;

c) the length of time and degree of the Appellant’s establishment in Canada;

d) the impact of removal on the Appellant’s family members in Canada;

e) the support available for the Appellant in the family and community;

f) the degree of hardship that would be caused to the Appellant by the removal from Canada, including the conditions in the likely country of removal; and

g) the best interests of a child directly affected by the decision [although not applicable in this matter]. [ 11 ] The Board also stated [at paragraph 9] that “[t]he exercise of discretion must be consistent with the objectives of the IRPA . These include the need to protect the health and safety of Canadians and maintain the security of Canadian society.” This refers specifically to paragraph 3(1) (

h) of the IRPA . [ 12 ] The IAD described the “very serious” nature of the offence and lack of credibility concerning the applicant’s conduct as best detailed by paragraphs 10 to 12 of the decision: The Appellant was convicted of forcible confinement against a school colleague he suspected was pursuing his then girlfriend. The Appellant spoke to the victim on two occasions and asked him to stop. Afterwards, as the Appellant suspected that the victim was continuing to pursue his girlfriend, the Appellant arranged to meet him at a tea shop and, unknown to the victim, brought three friends.

The victim tried to enter his car and flee when he saw the Appellant did not arrive alone, though was stopped from doing so by the Appellant. The Appellant forced the victim into the tea shop where at points the Appellant or his friends confined him, restrained the neck of the victim to prevent him from rising or leaving his chair, yelled at him and hit him. They also took turns going through the victim’s cell phone. The Appellant and his friends then took the victim into a nearby alley where the victim was struck some more.

The Appellant and his friends then forced the victim into the vehicle he was using and drove him to a nearby vacant area. They continued their assault during the drive and at their destination. The Appellant and his friends demanded money from the victim and as he had none, one of the Appellant’s friends began to impersonate the victim on the victim’s chat applications. They were able to convince one of the victim’s friends to give them money and then drove the victim to his friend’s home to collect it. They took the money from the victim when he re-entered the vehicle.

The victim was released after a second friend suspected that something was amiss after he received the demand for money through the victim’s chat applications. The second friend agreed to give the victim money as a front to meet the victim and his assailants and convince them to release the victim. There is little doubt that this is a serious offence. I note that the maximum sentence for imprisonment for the offence of forcible confinement is 10 years and that it is considered “serious criminality” according to the IRPA under

section 36 (l). This was a premeditated act which involved violence. There were a number of alternate ways to confront the victim and resolve the situation without resulting to unlawful acts. The Appellant testified at his criminal trial that he was too influenced by his friends who came with him to meet the victim. He also testified to the fact that his friends told him that he is not a fighter and could not stand up for himself; and therefore they asked to be present when he met the victim.

The Appellant provided no credible explanation as to what he intended his friends to do during the meeting with the victim, or why he had not considered the possibility that there could be violence considering their statements. Further, during testimony the Appellant indicated that the whole incident lasted approximately two hours and that during this time he became aware that what was occurring was wrong. While he testified before the IAD that he did try to stop his friends, the Appellant could provide little evidence of how or precisely when he tried to stop his friends.

I accept that the Appellant was influenced, to an extent, by his friends. However, I also find that the Appellant failed to consider possible violence when he permitted his friends to meet the victim, and I note the Appellant’s lack of concrete efforts to stop the incident when he became aware that what was occurring was wrong. Due to this I give little weight to the Appellant’s testimony that the events which transpired were a result of him being too influenced by his friends who came with him to meet [t]he victim.

Considering all of the circumstances, I find that this is a very serious offence. [Footnotes omitted.] [ 13 ] The IAD noted the positive elements of the applicant’s potential for rehabilitation and level of remorse. He had no further convictions since the offence, and was meeting all the conditions of his sentence. A psychological report provided in the applicant’s sentencing hearing concluded that his behaviour was situational rather than characteristic and that he is not someone who represents a risk of violence in the community.

Although expelled from high school, he found alternate avenues to successfully complete his secondary schooling, demonstrating high academic success. He eventually accepted to study at Western University in Ontario, which included a scholarship. At the time of the hearing he was preparing to enter his second year of the program. [ 14 ] However, the IAD called into question the applicant’s expression of remorse due to conflicting and equivocal evidence concerning his responsibility for the incident.

He testified that his friends were somewhat responsible, though not blaming them, but then further stated that he was too influenced by his friends who encouraged him. The Board concluded as a finding of fact [at paragraph 14] “that the level of remorse detracts from the weight that I can attribute to the Appellant’s efforts at rehabilitation.” [ 15 ] The IAD expressed concerns about the applicant’s efforts to lower his risk of reoffending.

Concerning his rehabilitation, he had not adequately addressed a number of potential areas, particularly in reference to the psychological assessment opinion that stated he would benefit from counselling in specific areas. The Board noted that the applicant had not sought therapy and had no immediate plans to do so. The evidence and testimony showed that the applicant had done little beyond satisfying the conditions of his sentence or fulfilling his academic ambitions that would ensure that he would react differently in a similar situation.

The Board further concurred with the statement by applicant’s counsel during submissions that he had yet to put in place meaningful strategies for rehabilitation. [ 16 ] In addressing the psychological report concerning the possibility of rehabilitation, the IAD noted the different mandates for criminal sentencing and rehabilitation under the IRPA . It also noted the points raised in the criminal proceedings that all the information was provided by the applicant and no corroborative clinical testing was carried out despite four different interviews.

The Board stated that it must reach its own conclusions regarding whether the prospects of rehabilitation are such that, alone or in combination with other factors, they warrant special relief from a valid removal order ( Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 ( Khosa SCC )). [ 17 ] The IAD found that, when testifying, the applicant provided little evidence to show that he had the skills and insight to respond differently should he encounter another stressful situation. His statement that in the future he would use the law to protect himself versus

violence was vague. The applicant was unable to speak to any strategies to resolve conflict without resorting to legal means. This raised concerns in the Board’s mind about his ability to deal with situations where he would need to confront others about behaviors without legal assistance. The applicant also testified that one of the reasons he had not pursued counselling to explore his emotions was that he was ashamed to talk about the incident.

The Board found that this augments the concerns over the applicant’s lack of counselling and level of rehabilitation, as he appears to have not developed the skills to seek help and talk about stressful situations. Considering the limitations of the psychological report and these considerations, the Board concurred with the general conclusion of the psychological report that the applicant did not represent a risk of violence in the community. Nevertheless, it was not convinced that he would not reoffend non-violently or with less violence if similar situations presented themselves.

The IAD concluded that the degree of remorse and rehabilitation of the applicant was a [at paragraph 17] “minimally negative factor in th[e] appeal.” [ 18 ] Thereafter, the IAD considered the traditional H&C factors. The applicant’s father, sister, sister’s family, grandparents and many extended family members live in China, that balanced with the members of family in Canada, representing a neutral factor. He visited China frequently and there was little evidence that he would not be supported by his family should he return there.

The limited degree of establishment was taken into consideration, noting his young age, and determined to be a somewhat positive factor, as were some of his close and supportive relationships in Canada. His concerns about the possible loss of university credits were not substantiated.

The IAD’s overall conclusion was that the applicant would not face any undue hardship should he be returned to China. [ 19 ] The IAD responded to the request for a stay of the removal order, stating as follows [at paragraph 23]: The panel has taken into consideration the option of a stay of the removal order, which was a position suggested by the Respondent. In the particular circumstances of this case, a stay would do little to serve the objectives of the IRPA .

Actions such as those by the Appellant undermine public confidence in the IRPA and they undermine public support for Canada’s generous immigration and refugee system. They cast a cloud of suspicion over the many honest and hardworking immigrants trying to make a better life for themselves in Canada. The public would be offended if the Appellant was allowed to remain in Canada, even with conditions. A stay of the deportation order is not appropriate. IV.

Parties’ submissions [ 20 ] The applicant argued that the IAD breached the applicant’s procedural fairness because the Board did not request any input, nor raise any concerns, with respect to the joint recommendation, but rather indicated his intention to reserve judgment. The Board thereafter rendered a negative decision, dismissing the stay request without any real consideration of the merits, as well as relying on an impermissible “general deterrence” line of reasoning.

The applicant’s second submission was that the Board’s assessment of the H&C factors was unreasonable. [ 21 ] The respondent’s submissions, including those in reply to a Direction of the Court, were threefold. First, the applicant simply disagrees with the IAD’s weighing of the evidence with respect to the assessment of the H&C factors. Second, there was no breach of procedural fairness by the IAD not accepting a joint submission supporting a stay of removal, noting Federal Court jurisprudence that the IAD is not bound by joint submissions.

Third, with respect to the rejection of the stay of removal, the IAD’s statements relating to “general deterrence” considerations did not go to the core of the Decision. The essence of the refusal was the crimes were too serious to merit a stay, while the Ribic factors had already been deemed unmet by the Board, such that the superfluous statements of general deterrence to reject the stay did not alter the outcome. [ 22 ] In response to the respondent’s third argument, the applicant submitted that the tests applied under paragraph 67(1) (

c) and subsection 68(1) of the Act must reflect a sliding scale of the level of meeting the Ribic factors, in order to ensure their distinct application. To conclude otherwise would render untenable a body of cases in which relief is denied under

section 67 , but granted under

section 68 . V. Standard of review [ 23 ] In accordance with the recent decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , 441 D.L.R. (4th) 1 ( Vavilov ), at paragraph 16 , the new framework to determine the standard of review is based on the presumption that an impugned decision is reasonable. This presumption has not been rebutted for any of the issues raised in this case. [ 24 ] The focus of reasonableness review must be on the decision actually made by the decision maker concerning both the reasoning process and the outcome.

The reviewing courts must determine whether the decision “is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker” ( Vavilov , at paragraph 85 and 99ff ). A reasonable decision is justified in light of the particular legal and factual constraints that bear on the decision— “it is not enough for the outcome of a decision to be justifiable. ... the decision must also be justified ” ( Vavilov , at paragraph 86 ).

The reviewing court must determine whether the decision “bears the hallmarks of reasonableness—justification, transparency and intelligibility” ( Vavilov , at paragraph 99 ).

Finally, the onus is on the party who contests the decision to demonstrate that it is not reasonable ( Vavilov , at paragraph 100 ). [ 25 ] With respect to factual findings, which extend to inferences of fact, parties must demonstrate that exceptional circumstances apply which would permit the reviewing court to interfere with factual findings, and that they are not requesting the court to re-weigh and reassess the evidence considered by the decision maker ( Vavilov , at paragraphs 125–126 ). VI.

Relevant statutory materials [ 26 ] The relevant statutory materials are as follows: Disposition 66 After considering the appeal of a decision, the Immigration Appeal Division shall

(

a) allow the appeal in accordance with

section 67; (

b) stay the removal order in accordance with

section 68; or (

c) dismiss the appeal in accordance with

section 69. Appeal allowed 67

(1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, … (

c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. … Removal order stayed 68

(1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case . … Dismissal 69

(1) The Immigration Appeal Division shall dismiss an appeal if it does not allow the appeal or stay the removal order, if any . [Emphasis added.] VII. Issues

(1) Was the joint submission for a stay of removal fairly regarded?

(2) Can the same considerations to reject an appeal under paragraph 67(1) (

c) apply equally under subsection 68(1) to reject a request to stay a removal, and if so upon what reasoning can they be differentiated in application?

(3) Did the IAD err in law in the exercise of its discretion under paragraph 67(1) (

c) of the Act ?

(4) Did the IAD err in law in referring to “general deterrence” reasoning to reject the stay of removal request under subsection 68(1) of the Act ? VIII. Analysis A. Fair consideration of the joint submission [ 27 ] The applicant’s challenge to the Board’s fair treatment of the joint submission made with the Attorney General is without merit. It is acknowledged that the Board is not required to accept a joint submission ( Saroya v. Canada (Citizenship and Immigration) , 2015 FC 428 , at paragraph 20 ; Doe v. Canada (Public Safety and Emergency Preparedness) , 2016 FC 518 , 42 Imm.

L.R. (4th) 71, at paragraph 44 ). [ 28 ] There can be no issue of fairness in terms of responding to submissions when the Board affords the parties an opportunity to make submissions, which it subsequently rejects, even if for unexpected reasons. In this case, the issue refers to the alleged unfairness in not being able to address aspects of general deterrence in the Board’s reasons based on the evidence before it. This raises issues as to the correctness of the Board’s legal reasoning that the Court addresses below.

Courts may apply the correct law to the factual matrix, even if the parties do not address the legal principle relied upon by the court. The exception arises in fairness, if the reviewing court modifies the underlying evidentiary matrix, or a well-established legal standard that may require new evidence and new submissions to be considered. [ 29 ] It is always open to the decision maker to seek further submissions on a legal issue the parties have not addressed, but should have, based on the factual matrix, as a self-imposed means to ensure the correctness of its legal assessments.

However, it is not required to do so. The legal issue is one that relates to the proper law, regardless of submissions, and may be the subject of a certified question on appeal. This issue of procedural fairness should not be confused with a form of unfairness in failing to address significant evidence or the parties’ submissions in the course of fact-finding or decision making. [ 30 ] Conversely, the Court is more concerned with a procedural breach by the applicant and the Attorney General who did not ensure that the IAD was able to conduct a proper hearing.

They failed to disclose their stay of removal agreement until the completion of the hearing. In the meantime, the Attorney General conducted an examination in chief of the applicant, on occasion leading, posing normally impermissible redundant questions, or those that the applicant could have covered, that were intended to demonstrate his rehabilitation and remorse.

More importantly, the failure to indicate an intention to request a stay of removal at the opening of proceedings may have compromised the questions the Board might have posed to assist in obtaining evidence allowing it, for instance, to distinguish the circumstances that should apply under paragraph 67(1) (

c) from those under

section 68 . [ 31 ] Besides the requirement that the Attorney General indicate at the opening of proceedings its intention to support a joint agreement for stay of removal, his counsel should normally limit its participation to submissions, unless there is relevant evidence in the Attorney General’s possession that is pertinent to the issues at hand. In addition, in circumstances involving a stay of removal of

someone convicted of serious criminality where issues of personal safety and security are pertinent, the Attorney General should relateany concerns in this regard that might be relevant to the determination of the stay request not raised in the course of the hearing. [32] Furthermore, because a joint submission places the Board at a disadvantage in not having the benefit of an adversarial challengeto the request for a stay, the Attorney General is required to provide the Board with a balanced analysis describing why it supports thereasoning relied on by the applicant to grant the stay.

In effect, it should indicate that it has made its best efforts to obtain all the relevantevidence supporting and opposing granting the stay, i.e., aspects of the equitable case, and particularly those relevant to the safety andsecurity of the appellant remaining in Canada. Supporting a stay of removal should not be a pro forma exercise on the part of theAttorney General. B. The

interpretation and differentiation of paragraph 67(1)(

c) and subsection 68(1) of the IRPA

(1) Introduction [33] As detailed in the reasons above, the Board undertook a thorough and well-reasoned analysis of the Ribic factors in support of itsconclusion dismissing the appeal under paragraph 67(1)(c). The Court agrees with the respondent that in essence the applicant isrequesting it to reweigh the evidence, which it cannot do. [34] The remaining significant issue is whether the Board erred in its reasons for refusing to accept the agreement to stay theapplicant’s removal based on wrong legal principles under subsection 68(1).

In confronting this issue, the problem encountered is thatthe principles governing the application of subsection 68(1) cannot be confidently assumed without knowing how they are to bedistinguished from those governing paragraph 67(1)(c). It appears that neither the Federal Court, nor the IAD, has previously attemptedto provide a differential interpretive analysis of the two provisions. [35] As the parties did not address the differential application of these provisions, the Court requested further submissions from theparties.

They provided little in the form of policies, case law or interpretive extrinsic evidence to distinguish the application of the twoprovisions. Counsel instead used the opportunity to describe some of the Board jurisprudence regarding the application of subsection68(1). The previous jurisprudence is nonetheless useful and worthy of consideration.

(2) Parties’ submissions regarding the differential

interpretation of paragraph 67(1)(

c) and subsection 68(1) [36] The applicant submitted that a stay of removal should be granted if the Board is convinced that appellants are on their way torehabilitation and they do not pose unacceptable risks of reoffending. The Court would not heavily rely on the distinction between anappellant being on their way to rehabilitation and not posing an unacceptable risk of reoffending—rehabilitation being for the purpose ofensuring that reoffending not occur, as they both share the same result.

While the Court generally agrees with the statement that notposing an unacceptable risk of reoffending is an essential element of obtaining a stay of removal, the standard is insufficiently strict. Theappropriate standard is demonstrating that it is unlikely the appellant will reoffend. More importantly, the timing of the application of thestandard is not when granting the stay, but when completing it. Without this distinction, this submission does not assist the Court in itssearch for a differential

interpretation of paragraph 67(1)(

c) and subsection 68(1). [37] The applicant supported his submission with a number of cases in which the IAD granted the stay of removal. The applicantreferred to the case of Barrinetos v. Canada (Public Safety and Emergency Preparedness), (I.R.B.), at paragraphs 8–9 where the Board accepted a joint recommendation from the parties on a stay request, acknowledging the appellant’s credibleexpression of remorse at his hearing.

The Board noted that the criminal acts that led to issuance of the removal order were serious, butalso acknowledged “that the Appellant has changed his life around in such a way as to warrant special relief in this case.” A lengthy staywas granted with the purpose of allowing the appellant to “establish by his conduct” that he can be “a law abiding resident of Canada.”The Court agrees for the most part that where all factors are properly considered, the purpose of a stay of removal is to provide anopportunity to demonstrate that the appellant will likely, as opposed to “can”, be a law-abiding resident of Canada. [38] In Malhi v.

Canada (Public Safety and Emergency Preparedness), (I.R.B.), at paragraphs 5, 15–18 and 21–23, 29 the appellant argued for a stay of removal that would allow him to “show that he can be rehabilitated.” The Board held atparagraph 29 that “[t]he onus is on the appellant to show that there is acceptable risk that he will not re-offend”, concluding “that, on abalance of probabilities, there is a good possibility of rehabilitation.” The statement “a balance of probabilities, there is a goodpossibility” describes two different standards of proof, being those of a probability and a possibility.

The Court agrees that the risk of notreoffending is the appropriate test, but disagrees that the standard is an “acceptable risk” or “a good possibility”, both being insufficientlystrict. The standard must be one that sufficiently assures the safety and security of Canadian society. The applicant must establish thatcontinued efforts of rehabilitation during a stay period, and other risk-evaluating circumstances, will demonstrate the likelihood of hissuccessful rehabilitation, and therefore demonstrate that he is likely not to reoffend upon completion of the stay. [39] In Oneil v.

Canada (Public Safety and Emergency Preparedness), (I.R.B.), the Board had lingering concernsabout whether the appellant had truly turned his life around, but was nevertheless of the opinion that he was on the right track. TheBoard further stated at paragraph 35 that “[i]t is up to the appellant to demonstrate that he deserves to remain both within the family unitand in Canada and, as such, the panel is of the view that [a] three-year stay is minimally required.

A stay of this length will provide theappellant with the opportunity to demonstrate significant rehabilitation but also it will provide him with the opportunity to fail should hedeviate from the straight and narrow.” The Court disagrees that this reasoning reflects the requirements of granting a stay of removalunder subsection 68(1), particularly in relation to the concept of providing “an opportunity to fail”. [40] The respondent’s position in response to the Court’s direction was simply that the language of the two sections tracks identicallyand therefore, the Ribic factors apply equally to both questions.

Although this rings true, the Court finds this unhelpful because theymust be applied in some different manner to achieve different outcomes. [41] The Attorney General further cited Singh v. Canada (Citizenship and Immigration), 2020 FC 328, at paragraph 38 for theproposition that “[i]n order for the IAD to stay a removal order there must be sufficient humanitarian and compassionate grounds towarrant special relief.” This is consistent with Supreme Court and Federal Courts jurisprudence that describes all Ribic factors, including

seriousness of the offence and possibility of reoffending, as H&C factors. It is the Court’s respectful view that these factors do notconcern equitable hardship, but are countervailing factors relating to public safety and security. Describing them as equitable hardshipfactors is not in accordance with the modern

interpretation of paragraph 67(1)(

c) and subsection 68(1). They fall within the wording “inlight of all the circumstances” that must warrant equitable relief, or the French equivalent “vu les autres circonstances de l’affaire, laprise de mesures spéciales.” [42] The Court also noted the decision of Sananikone v. Canada (Minister of Citizenship and Immigration), [2001] I.A.D.D.

No. 1950(QL) (I.R.B.), the conclusionary portion of which is found at paragraphs 15 and 16, as follows: In all the circumstances of this case, the panel is satisfied, on a balance of probabilities, that the risk of the appellant re-offending issufficiently low that it does not conflict with our duty to administer the laws of Canada in such a matter as to maintain the health, safetyand good order of Canadian society. The panel is prepared to grant a stay for the appellant to continue with his rehabilitationprocess. The stay will be for a duration of three years.

The appellant needs to know that any further criminal conviction or any transgressions of the terms and conditions of his stay may leadto his removal from Canada. It is up to him to behave responsibly. The appellant has been given an important opportunity to follow themore positive path his life has taken recently. It is to be hoped that the appellant will recognize that as a very serious opportunity torehabilitate himself.

The present stay will provide structure to allow him to continue efforts to rehabilitate. [Emphasis added.] [43] The Court agrees that the risk of reoffending must be sufficiently low as a danger to the safety and good order of Canadiansociety in order for the granting the stay of removal. This reflects the essence of the second paragraph, namely that the result will be arehabilitated law-abiding citizen. Nevertheless, the test is not stated applying appropriate legal terminology, without any description ofthe ultimate purpose of the stay.

The stay is granted on the basis of demonstrating sufficient rehabilitation, such that at the termination ofthe stay period, the Board may conclude that it is likely the appellant will not reoffend in the future, if granted permanent resident status.

(3) Rajagopal v. Canada [44] Another case, this time at the Federal Court level, not referred to by the parties, but of some interest to these issues is that ofRajagopal v. Canada (Public Safety and Emergency Preparedness), 2007 FC 523 (Rajagopal), at paragraphs 30 to 34. The pertinentreasons are set out with the Court’s emphasis on statements that require discussion: 2. Assessment of Whether to Grant a Stay According to the applicant, if the applicant requests a stay as is the case here, the IAD must consider the request and give “good”reasons as to why it has refused it. As noted at paragraph 14 of Lewis v.

Canada (Minister of Citizenship and Immigration), (FC), [1999] F.C.J. 1227 (T.D.) (QL): “if a stay is requested and if the facts suggest that there is reason to consider a conditionalstay, then, if reasons are given pursuant to

section 69.4(5) of the Act, the applicant is entitled to know why a stay was denied”. The applicant asserts that in the present case the IAD has failed to provide any meaningful analysis or reasons for its refusal to grant astay, the extent of its attention being limited to a sweeping conclusion. As was noted in Archibald v. Canada (Minister of Citizenship andImmigration), [1995] F.C.J. No. 747 (T.D.) (QL) at paragraph 11: “a significant factor in assessing whether or not to stay the deportationorder is an evaluation of the risk which exists that the applicant will re-offend”.

In the present case, the applicant asserts that the IAD’ssole finding in this regard was based on its further finding that the applicant was not remorseful, which was in turn was based on themisconstrued nature of the police report. Therefore the IAD failed to consider all of the evidence which indicated that the applicantwould likely not re-offend. The respondent asserts that the IAD did not err in refusing to grant a stay, and that it gave clear reasons for the refusal.

The respondentasserts that the case law indicates that the applicant is entitled to know why the IAD denied a stay but that it does not support theassertion that the IAD must issue additional or special reasons in this regard. In dealing with the issue of whether or not to grant a stay, the IAD stated that “[s]tays of deportation are, by their very nature, specialrelief. However, as I have found the overall humanitarian and compassionate balance to weigh so negative as not to merit special relief.Special relief is therefore not warranted. It is therefore not appropriate for me to grant a stay”.

The IAD went on to note “[f]or all thesereasons, I find that the case does not merit special relief under sections 67(1)(

c) or 68(1)” of the Act. It is clear that the IAD’s analysis as a whole was meant to apply to its decisions with respect to both paragraph 67(1)(

c) and subsection68(1) of the Act. The IAD therefore did not merely state a conclusion with respect to the stay issue. [45] Three points are of interest to the Court in this case. First, the Federal Court confirms Archibald v. Canada (Minister ofCitizenship and Immigration) (1995), 95 F.T.R. 308, 29 Imm L.R. (2d) 259 (F.C.T.D.) in recognizing the significance of the risk factorof the safety and security of the public in determining whether the applicant will reoffend. Reoffending is often mentioned as a distinctfactor.

In fact, it is the objective of rehabilitation; to be rehabilitated is to be unlikely to reoffend. As already stated, the Court concludesthat the likelihood of reoffending, distinguishes the application of paragraph 67(1)(

c) from subsection 68(1) based on the point of timewhen that conclusion is reached, either at the completion of the hearing for the appeal, or the completion of the stay period for the stayof removal. [46] The second point relates to nomenclature. The Board in that case remarks that “the overall humanitarian and compassionatebalance to weigh so negative as not to merit special relief” (Rajagopal, at paragraph 33). Despite the 2001 IRPA amendments, the Boardand Courts insist on describing all of the seven Ribic factors as representing the overall humanitarian and compassionategrounds. Respectfully, this again stems from an incorrect

interpretation of the amended paragraph 67(1)(

c) and subsection 68(1), whichfails to recognize that Parliament separated humanitarian and compassion factors from the other two Ribic factors, in addition to anyother relevant factors, which for matters of serious criminality, relate to the safety and security of the public. [47] Third, with respect, it is suggested that the reasoning of the Board as upheld by the Court, would not meet the standard of review

set down in Vavilov requiring that the decision be “justified”. The applicant contended that the IAD failed to “give good reasons” to refuse a stay, claiming that the Board “failed to provide any meaningful analysis or reasons for its refusal to grant a stay” ( Rajagopal , at paragraph 31 ). The respondent argued that despite being entitled to know why the stay was required, there is no requirement that “the IAD must issue additional or special reasons in this regard” ( Rajagopal , at paragraph 32 ).

The Court upheld the concept that the overall H&C balance of factors did not merit special relief in either case. [ 48 ] The problem is the same encountered in this matter. The Board is unable to provide a rational explanation of the differential standards distinguishing paragraph 67(1) (

c) and subsection 68(1) of the Act . The Supreme Court indicated in Vavilov , at paragraph 85 that there must be “an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker” (emphasis added). The Court respectfully submits that the absence of a statement of a purpose or defined legal standard distinguishing the application of the two provisions represents a constraint on the decision maker.

There is no coherent and rational chain of analysis of these provisions that justifies the same reasoning applying to two distinct provisions that allow for different relief outcomes. [ 49 ] Moreover, if the standard in Rajagopal is that the same facts do not merit special relief under both provisions, where the same legal standard applies, this logically confirms that there must be a common threshold applying to both provisions. This reasoning does not appear to meet the standards of justification required in Vavilov without the thresholds for success described in both situations.

There is no such thing as a rejection pulled out of the air so to speak, which is not grounded in the facts, applied to a reasonable standard relating to two provisions. [ 50 ] It appears that the other Board members contemplating the reasoning in Rajagopal concluded it to be problematic. Otherwise, one would have thought that such a simple solution for the conundrum of differentiating the application of the two provisions would have been adopted in other cases, particularly after being confirmed by the Federal Court.

If nothing else, Rajagopal is one more example of the struggles Board members and the Court face in grappling with a meaningful differentiation for refusing the stay, after the Board has expended all of its best efforts justifying the dismissal of the appeal.

(4) Distinguishing Khosa SCC ’s endorsement of the Ribic factors (

a) Introduction [ 51 ] The Court commences its differential analysis of the two provisions by what will undoubtedly be seen as a novel conclusion. The precedential value of the

interpretation of paragraph 67(1) (

c) of the IRPA in the Supreme Court of Canada’s Khosa decision should be limited to its significant purpose of reconciling the assessment of facts with the reasonability standard of review in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ). [ 52 ] In particular, Khosa SCC cannot be interpreted as a wholesale endorsement of the Ribic factors, and certainly not for their application to the

interpretation of paragraph 67(1) (

c) and subsection 68(1) of the Act . The scheme of these provisions, and their intended methodology of application have not been the subject of a holistic and “modern”

interpretation. The following analysis is intended to comprehensively interpret paragraph 67(1)(

c) and subsection 68(1), starting with a historical perspective of the treatment of the provisions they replaced. (

b) Ribic and Chieu (

i) Ribic [ 53 ] The alternative equitable remedies that allowed inadmissible persons the option of an outright appeal, or merely granting a conditional stay of removal, dates back to

section 11 of the Immigration Appeal Board Act , S.C. 1966-67, c. 90. It provided for appeals to the Immigration Appeal Board (IAB), as it was then named, on any question of law or fact or mixed law and fact.

Section 15 of this legislation conferred upon the IAB the power to stay or quash a deportation order made against a permanent resident having regard to “all the circumstances of the case”. [ 54 ] There was no distinct mention of humanitarian compassionate language, as exists in the 2001 amended provisions.

Nor did the legislation provide a scheme that separated the factors into the component of hardship, or that of the two countervailing factors (the possibility of reoffending and the seriousness of the offence) that concern the safety and security of the public by essentially granting permanent resident status to persons formally convicted of serious criminality. [ 55 ] It is also of considerable importance to note that the original phraseology of “all the circumstances of the case” in the 1966-67 legislation has been carried forward into the 2001 amended paragraph 67(1) (

c) and subsection 68(1) . This is significant in that the Supreme Court in Khosa , in its singular paragraph interpreting paragraph 67(1) (c), failed to consider the implications evoked by Parliament’s continued reference to this phraseology. [ 56 ] Moreover, the Board in Ribic , and the courts in Khosa , were not contending with alternative requests for special relief that would initiate a differential

interpretation providing for different outcomes. In Ribic , the appellant had failed to make her request for a change in conditions in writing as required by the Act . The strict application of the law did not provide for equitable considerations when the matter was before the adjudicator, resulting in a deportation order. It was an obvious case where equitable considerations were required. [ 57 ] The Board described the application of its mandate of deciding the matter having regard to “all the circumstances of the case” at paragraphs 14 and 15 of Ribic , as follows, with the Court’s emphasis: Whenever the Board exercises its equitable jurisdiction pursuant to paragraph 72(1) (

b) it does so only after having found that the deportation order is valid in law. In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case , the person should not be removed from Canada.… The Board has determined that there are such circumstances that warrant allowing the appeal. The deportation order is quashed and the

appeal is allowed. (ii) Chieu ● Absence of scheme or purpose in the legislation [ 58 ] Paragraph 72(1)(

b) became paragraph 70(1)(

b) by the time that the Supreme Court considered the Ribic factors in Chieu , almost two decades later in 2002. In Chieu , the Court’s primary focus was on the narrow issue of whether hardship in the appellant’s country of origin was an appropriate Ribic factor, as opposed to being ousted by the Minister of Citizenship and Immigration’s exclusive authority over the subject. [ 59 ] Despite its limited purview, Chieu ’s sanctioning of the Ribic factors is its principal continuing legacy. The factors themselves are not so problematic.

The legacy issue is the continued endorsement of its methodology consisting of a global assessment of each of the seven specific factors, and then weighing them all together to determine the outcome of the appeals. Regarding this methodology in Chieu , there is no suggestion that the Court’s

interpretation was erroneous based upon the former wording of the paragraph 70(1) (

b) of the IRPA . These reasons are, however, intended to bring to an end its methodology precedent in applying paragraph 67(1) (

c) and subsection 68(1) . [ 60 ] Parliament had provided no direction for the granting of the appeal or stay of removal, besides “having regard to all of the circumstances of the case”. It was up to the Board to confection the relevant considerations and the manner of the exercise of its discretion in applying them. In the context of the narrow issue in Chieu , and the general acceptance of the Ribic factors, there was no basis for reconsidering Ribic .

It is the absence of any reasonable explanation in the jurisprudence to differentiate two different outcomes that has driven the Court to query what Parliament had in mind when prescribing the identical legal standard for both provisions. ● The likelihood of reoffending [ 61 ] An important point to note in Chieu regarding the Court’s reconciliation of the two provisions, is the Supreme Court’s comments on the risk factor of reoffending .

Given the importance that this Court concludes that Parliament attaches to this factor, or better described its purpose, the Supreme Court’s comments are relevant to this discussion. At paragraph 32 below, the Court addressed the risk factor of reoffending to support its

interpretation of the term “all” in paragraph 70(1)(b). It emphasized the term “likelihood” and “likely”, in addition to this Court’s emphasis of the longer passage: In addition, the inclusive nature of the word “all” suggests that realistic possibilities are just as relevant as certainties in making this discretionary decision. For instance, the likelihood that an individual will re-offend is an uncertain factor , but one that is commonly considered by the I.A.D. pursuant to s. 70(1) (

b) when an individual is being removed as a result of a criminal conviction , as is the case in Al Sagban . This indicates that the I.A.D. should also be able to consider conditions in the likely country of removal, even when the ultimate country of removal is not known with absolute certainty at the time the s. 70(1) (

b) appeal is heard. [ 62 ] At first blush, the conclusion to draw from this paragraph is that, although not specifically mentioned as a Ribic factor, reoffending should be considered as another “uncertain” factor, “when an individual is being removed as a result of criminal conviction” ( Chieu , at paragraph 32 ). With respect, this Court’s view differs in concluding that neither the Board nor the courts have fully recognized that the “risk of reoffending” is the purpose, or

summary, of all the countervailing risk factors constraining the granting of special equitable relief. [ 63 ] However, for the purpose of the present discussion, the significance relates to the Supreme Court’s threshold of a “likelihood” of reoffending as the standard of proof. This Court concludes that a likelihood or probability of not reoffending is Parliament’s intended failsafe measure limiting the granting of special relief under either paragraph 67(1) (

c) or subsection 68(1) of the Act . [ 64 ] It is worth referring to the jurisprudence interpreting the contextual paragraph 36(3) (

c) of the Act . It stipulates that persons are not inadmissible if able to satisfy “the Minister that they have been rehabilitated”. Reflecting on policies, the courts have stated that a rehabilitation application “must at minimum, and expressly, weigh whether the foreign national will likely reoffend” ( Tahhan v. Canada (Citizenship and Immigration) , 2018 FC 1279 , at paragraph 21 , Diner J.; De Campos Gregorio v. Canada (Citizenship and Immigration) , 2020 FC 748 , at paragraphs 23–26 ; Ramirez Velasco v. Canada (Citizenship and Immigration) , 2019 FC 543 , at paragraphs 8–9 ; and Lau v.

Canada (Citizenship and Immigration) , 2016 FC 1184 , at paragraph 24 ). [ 65 ] The jurisprudence applying the Ribic “possibility of rehabilitation” factor rarely describes the test as proving a threshold of a likelihood of not reoffending. This appears to be due to Khosa SCC ’s wholesale endorsement of the Ribic factors. This has led the Federal Courts to fixate on the term “possibility” as some form of threshold, in contradistinction to that of a “likelihood”. It is also a function of the recognition that the stay request must meet some less strict standard than that of the appeal.

This misleadingly lends itself to a threshold of possibilities. As a result, the jurisprudence has not properly come to grips with Parliament’s intention to establish the likelihood of not reoffending as the limitation on granting the appeals for both paragraph 67(1)(

c) and subsection 68(1). [ 66 ] Parliament intended reoffending to be the compelling factor that summarizes the purpose and success of rehabilitation, remorse, seriousness of the offence or any other aspect of the countervailing factors of safety and security of the public that oppose granting the appeal or stay. It is similarly the Court’s view that a likelihood of reoffending logically overrides even the strongest and most compelling of H&C evidence of a special exemption from deportation.

For this reason, the likelihood of reoffending is also the defining factor that differentiates the application of the two provisions. The likelihood of reoffending is evaluated, however, based on the timing of the assessment of when the risk of reoffending may occur—after the appeal for paragraph 67(1)(

c) or after the expiration of the stay period for subsection 68(1). ● The possibility of rehabilitation [ 67 ] In mentioning “likelihood” as the standard of proof of reoffending, it is noteworthy that this reference might appear to be in conflict with the Ribic factor of “a possibility of rehabilitation” ( Ribic , at paragraph 14). This is not the case at all. Bearing in mind that

the same factors apply to paragraph 67(1) (

c) and subsection 68(1) , a different range of standards of proof is to be expected. The differentiation of the two provisions relates to scaling the risk of reoffending. Weighing the scaled countervailing

summary of factors against the scaled equitable factors provides the optimum method of balancing the conflicting factors to determine the outcome of the appeal or request for a stay. [ 68 ] A possibility of whatever is being evaluated, in contradistinction to a probability, has a range of 1 percent through 99 percent chance of occurrence. This is the distinction of a possibility measure as opposed to the 51 percent threshold of a “probability” or “likelihood” measure of factors, evidence or legal outcome.

This explains why the standard, and really the only consistent workable threshold throughout almost all legal determinations at either the factual or legal level, is based upon a probability threshold. [ 69 ] There are exceptions where possibilities are legitimately used, e.g. to scale future damage awards, or where any scaling is impractical, such as fixing the lowest possible standard of the “scintilla of utility” in patent law. Otherwise, possibilities are eschewed in law.

They undermine the Rule of Law by the subjective inconsistencies of determinations that a range of thresholds allows for, e.g. a serious possibility describing an indeterminate range of thresholds. Possibilities as a form of threshold below a probability, besides being subjectively amorphous, are unacceptably asymmetrical in their effect on the parties, if not intended to serve some policy purpose.

In adjudicating public safety considerations when contesting a possibility finding that is not for scaling purposes, the Attorney General faces a standard akin to that of the prosecution in criminal law of “proof beyond a reasonable doubt”. Working with indeterminate ranges of possibilities is also a more challenging mental decisional exercise than the simpler either/or, yes/no decision of a probability threshold. [ 70 ] In this case, however, the measure and application of the Ribic factors represents a valid resort to possibilities.

The weighing of the compassionate H&C factors against the countervailing public safety and security factors lends itself to a comparative scaled range of possibilities. This renders the graduation of the relative strength of both the equitable and safety and security factors relevant, particularly where the request for stay is an issue. Qualifying the equitable case of scaled possibilities as “sufficient”, “good” or “strong” is a reasonable exercise in these circumstances. The total equitable scale is then weighed and balanced against the scaled factors relating to reoffending.

The difference, however, is that the likelihood of reoffending range is capped at not exceeding 50 percent. Any greater risk thereafter defines a likelihood of reoffending that results in the automatic rejection of either remedy. Below a likelihood, “sufficiently”, “quite” and “highly” unlikely, can serve as scaled descriptors describing the degree of rehabilitation. (

c) Khosa [ 71 ] The Supreme Court in Khosa by simply adopting Chieu ’s conclusions for its purposes, had the effect of enshrining the Ribic factors in the amended paragraph 67(1) (

c) and subsection 68(1) of the IRPA . This extended to Ribic ’s methodology of weighing each factor separately, and then cumulatively deciding the case on how the factors balance out as its

interpretation of paragraph 67(1)(c). The Court respectfully concludes that when the majority reasons in Khosa SCC are carefully considered and assessed against the backdrop of Vavilov constraints, drawing such a broad interpretive precedential conclusion is neither “justified”, nor “justifiable”. [ 72 ] When adopting Chieu ’s endorsement of the Ribic factors, the Supreme Court of Canada in Khosa was not focused in any manner on conducting a holistic

interpretation of the amended formulation of paragraph 67(1) (

c) and subsection 68(1) of the Act . The Court had much bigger fish to fry in terms of the challenge it faced. It had to determine the appropriate standard to review assessed facts (those involving the weighing of evidence). The recent decision in Dunsmuir had just eliminated the patently unreasonable standard, which heretofore had been applied to review facts. [ 73 ] The circumstances and history of the review of the Ribic rehabilitation factor in the Federal Courts’ decisions below, conspicuously brought this issue to the Supreme Court’s attention.

Both courts rendered their decisions in the three-factor judicial review era, whereas the Supreme Court was applying Dunsmuir principles. First, the Federal Court in Khosa concluded, at paragraph 33, that the patently unreasonable standard should apply because “Mr. Khosa’s principal submission is that the IAD erred by misconstruing his evidence” relating to the “possibility of rehabilitation” factor ( Khosa v. Canada (Minister of Citizenship and Immigration) , 2005 FC 1218 , 266 F.T.R. 138 ) . This finding was particularly in respect of the Court’s

interpretation of paragraph 67(1)(c), stated as follows at paragraph 24: The standard of review for decisions of the IAD on appeals under paragraph 67(1)(c), and the corresponding provisions of the former legislation, has consistently been characterized as patently unreasonable.… [ 74 ] The majority of the Federal Court of Appeal disagreed on the basis that the trend in Supreme Court jurisprudence was towards expanding the scope of the reasonableness factor ( Khosa v. Canada (Citizenship and Immigration) , 2007 FCA 24 , [2007] 4 F.C.R. 332 ( Khosa FCA ), at paragraphs 3–7 ).

In addition, less deference was owed to the expertise of the Board regarding the issue of rehabilitation, a “concept with respect to which the Board cannot be said to have particular expertise”, and on which it should generally take its lead from the criminal courts ( Khosa FCA , at paragraphs 9–12). [ 75 ] The Supreme Court majority Judges disagreed with the [Federal] Court of Appeal, noting that the IAD has a mandate different from that of the criminal courts, and that deference was properly owed to the IAD under paragraph 67(1) (

c) of the IRPA ( Khosa SCC , at paragraphs 66–67). It obviously agreed that reasonableness was the appropriate standard of review, given that the patently unreasonableness standard no longer existed. This left the Court with the question of what to do with factual assessments under the reasonableness standard. [ 76 ] Justice Fish’s dissent forced the clear enunciation by the majority of what was originally a tentative “no reweighing of evidence” rule. Justice Fish embarked on a reweighing exercise and presented a more interventionist standard based on Dunsmuir language allowing intervention stating that “deference

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