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EXCLUSION (INADMISSIBLE PERSONS) - Grounds for inadmissibility - Security

Wednesday, September 01, 2021 @ 5:28 AM  


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Appeals by the Minister from decisions allowing the respondents’ judicial review applications from decisions of the Immigration Division and the Immigration Appeal Division interpreting s. 34(1)(e) of the Immigration and Refugee Protection Act. Section 34(1)(e) provided that permanent residents or foreign nationals were inadmissible on security grounds for engaging in acts of violence that would or might endanger the lives or safety of persons in Canada. The respondents argued s. 34(1)(e) only applied where there was a connection to national security. The Appeal Division found Parliament intended that the provisions of s. 34(1) related to security in a broader sense that included ensuring that individual Canadians are secure from acts of violence that would or might endanger their lives or safety. It noted that elsewhere in the Act, when Parliament intended security of Canada and national security, it used those terms, not the general term security. The Immigration Appeal Division also examined the context of the other inadmissibility provisions in the Act, especially s. 36, which provided for inadmissibility upon conviction of a criminal offence. The Federal Court concluded that the Immigration Appeal Division’s decision was unreasonable. The Federal Court looked at the consequences that flowed from ss. 34 and 36 inadmissibility findings, and concluded that, because somewhat harsher consequences flowed from s. 34 than s. 36, s. 34(1)(e) must have a connection to national security.

HELD: Appeals allowed. The Immigration Appeal Division was very much alive to the essential elements of the text, context and purpose of s. 34(1)(e), analyzing the most important elements of each. Given what was in the record and given what was argued, there were no omitted aspects that would cause a loss of confidence in the outcome reached by the decision maker. The Federal Court’s conclusion that, because somewhat harsher consequences flowed from s. 34 than s. 36, section 34(1)(e) must have a connection to national security was based on an incorrect assumption that the behaviour captured by s. 34(1)(e), acts of violence, and s. 36, offences under an Act of Parliament, was essentially the same. Section 36, however, applied to much more, including non-violent, criminal behaviour. In s. 36, read in light of the Criminal Code, Parliament chose to make a whole host of socially undesirable behaviour grounds for inadmissibility. By comparison, s. 34(1)(e) was the narrow provision, applying just to acts of violence. The Federal Court also gave little to no weight to the presumption against redundancy.

Canada (Minister of Citizenship and Immigration) v. Mason, [2021] F.C.J. No. 811, Federal Court of Appeal, D.W. Stratas, D.J. Rennie and A.L. Mactavish JJ.A., July 29, 2021. Digest No. TLD-August302021006