Agraira v. Can. (2013), 446 N.R. 65 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2013] N.R. TBEd. JN.015
Muhsen Ahmed Ramadan Agraira (appellant) v. Minister of Public Safety and Emergency Preparedness (respondent) and British Columbia Civil Liberties Association, Ahmad Daud Maqsudi, Canadian Council for Refugees, Canadian Association of Refugee Lawyers, Canadian Arab Federation and Canadian Tamil Congress (interveners)
(34258; 2013 SCC 36; 2013 CSC 36)
Indexed As: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al.
Supreme Court of Canada
McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Moldaver and Karakatsanis, JJ.
June 20, 2013.
Summary:
Agraira, a citizen of Libya, had resided in Canada since 1997. He was found to be inadmissible on security grounds in 2002 based on his membership in the Libyan National Salvation Front, a terrorist organization according to Citizenship and Immigration Canada. Agraira applied under s. 34(2) of the Immigration and Refugee Protection Act (IRPA) for ministerial relief from the determination of inadmissibility. His application was denied. The Minister of Public Safety and Emergency Preparedness concluded that it was not in the national interest to admit individuals who had had sustained contact with known terrorist and/or terrorist-connected organizations. Agraira’s application for permanent residence was accordingly denied, and he was at risk of deportation. Agraira applied for judicial review of the Minister’s decision denying relief from the determination of inadmissibility.
The Federal Court, in a decision reported at (2009), 357 F.T.R. 246, allowed the application. The Minister appealed.
The Federal Court of Appeal, in a decision reported at (2011), 415 N.R. 121, allowed the appeal and dismissed Agraira’s application for judicial review. Agraira appealed. He argued that the Minister took an overly narrow view of the term “national interest” in s. 34(2) of the IRPA by equating it with national security and public safety. He also argued that the Minister’s decision failed to meet his legitimate expectations that certain procedures would be followed and certain factors would be taken into account in determining his application for relief.
The Supreme Court of Canada dismissed the appeal. The court agreed with the Federal Court of Appeal, but for reasons differing in part, that the Minister’s decision was reasonable and that Agraira’s application for judicial review should be dismissed.
Administrative Law – Topic 2267
Natural justice – The duty of fairness – Reasonable expectation or legitimate expectation – The Minister of Public Safety and Emergency Preparedness denied Agraira’s application under s. 34(2) of the Immigration and Refugee Protection Act for relief from a determination that he was inadmissible on security grounds – Agraira submitted that the Minister’s decision failed to meet legitimate expectations created by Chapter 10 of Citizenship and Immigration Canada’s Inland Processing Manual: “Refusal of National Security Cases/Processing of National Interest Requests” (the “Guidelines”) that certain procedures would be followed and certain factors would be taken into account in determining his application for relief – The Supreme Court of Canada stated that “[i]n the case at bar, the Guidelines created a clear, unambiguous and unqualified procedural framework for the handling of relief applications, and thus a legitimate expectation that that framework would be followed” – However, in Agraira’s case, the Ministerial relief process followed the process set out in the Guidelines – His legitimate expectation in that regard was therefore fulfilled – See paragraphs 98 to 99.
Administrative Law – Topic 2267
Natural justice – The duty of fairness – Reasonable expectation or legitimate expectation – The Minister of Public Safety and Emergency Preparedness denied Agraira’s application under s. 34(2) of the Immigration and Refugee Protection Act for relief from a determination that he was inadmissible on security grounds – Agraira argued that he had a legitimate expectation that the Minister would consider certain factors in determining his application – First, he argued that Chapter 10 of Citizenship and Immigration Canada’s (CIC’s) Inland Processing Manual: “Refusal of National Security Cases/Processing of National Interest Requests” (the “Guidelines”) created an expectation that certain factors would be considered – Second, he alleged that he had a legitimate expectation that humanitarian and compassionate (H&C) factors would be considered as a result of a letter sent to him by CIC – The Supreme Court of Canada stated that even if it assumed that the Guidelines and the letter unambiguously promised Agraira that certain factors would be considered in assessing his application for relief and that, at law, someone in his position might in fact have a legitimate expectation that certain factors would be considered in making a discretionary decision, his argument would nevertheless fail – The Minister’s implied interpretation of the term “national interest” in s. 34(2) encompassed all the factors referred to in the Guidelines – Those factors included H&C factors – If Agraira had a legitimate expectation that the Minister would consider certain factors, including H&C factors, that expectation was fulfilled – See paragraphs 93 to 102.
Administrative Law – Topic 3202
Judicial review – General – Scope or standard of review – [See first
Aliens – Topic 4062
].
Administrative Law – Topic 3208
Judicial review – General – Whether tribunal’s reasons may be referred to in determining scope of tribunal’s order – The Minister of Public Safety and Emergency Preparedness denied Agraira’s application under s. 34(2) of the Immigration and Refugee Protection Act for relief from a determination that he was inadmissible on security grounds – The Federal Court allowed Agraira’s application for judicial review – The Federal Court of Appeal allowed the Minister’s appeal – Agraira appealed – He argued that the Minister took an overly narrow view of the term “national interest” in s. 34(2) by equating it with national security and public safety – The Supreme Court of Canada stated that “[t]he Minister, in making his decision with respect to the appellant, did not expressly define the term ‘national interest’. … We are therefore left in the position, on this issue, of having no express decision of an administrative decision maker to review” – The court referred to Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association (2011 SCC), where Rothstein, J., held that a decision maker’s decision on the merits could imply a particular interpretation of the statutory provision at issue even if the decision maker had not expressed an opinion on that provision’s meaning – The court applied the reasoning from Alberta Teachers’ Association to this case, stating that “[i]t is evident from the Minister’s holding that ‘[i]t is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations’ that the Minister made a determination of the meaning of ‘national interest’. An interpretative decision as to that term is necessarily implied within his ultimate decision on ministerial relief, although this Court is not in a position to determine with finality the actual reasoning of the Minister. In these circumstances, we may ‘consider the reasons that could be offered for the [Minister’s] decision when conducting a reasonableness review’ of that decision … Accordingly, I now turn to consider, what appears to have been the ministerial interpretation of ‘national interest’, based on the Minister’s ‘express reasons’ and the Guidelines [Chapter 10 of the Citizenship and Immigration Canada’s Inland Processing Manual: ‘Refusal of National Security Cases/Processing of National Interest Requests’], which inform the scope and context of those reasons” – See paragraphs 56 to 58.
Aliens – Topic 2
Definitions and general principles – Legislation – Interpretation – [See first, second, third, fourth and fifth
Aliens – Topic 1655
].
Aliens – Topic 25
Definitions and general principles – Immigration manuals, guidelines, etc. – [See both
Administrative Law – Topic 2267
and first and fifth
Aliens – Topic 1655
].
Aliens – Topic 1206
Admission – Immigrants – General – Upon compassionate or humanitarian grounds – [See fourth
Aliens – Topic 1655
].
Aliens – Topic 1655
Exclusion and expulsion – Immigration – Deportation – Grounds for – Inadmissibility – Exception – Ministerial declaration that presence of permanent resident or foreign national not detrimental to the national interest – The Minister of Public Safety and Emergency Preparedness denied Agraira’s application under s. 34(2) of the Immigration and Refugee Protection Act for relief from a determination that he was inadmissible on security grounds – The Federal Court allowed Agraira’s application for judicial review – The Federal Court of Appeal allowed the Minister’s appeal – Agraira appealed – The Minister, in making his decision, did not expressly define the term “national interest” in s. 34(2) – The Supreme Court of Canada stated that Chapter 10 of Citizenship and Immigration Canada’s (CIC’s) Inland Processing Manual: “Refusal of National Security Cases/Processing of National Interest Requests” (the “Guidelines”) “guided the exercise of [the Minister’s] discretion and assisted in framing a fair administrative process for such applications. As a result, the Guidelines can be of assistance to the Court in understanding the Minister’s implied interpretation of the ‘national interest’. Moreover, the Minister placed particular emphasis on matters related to national security and public safety in the reasons he gave for his decision. … had the Minister expressly provided a definition of the term ‘national interest’ in support of his decision on the merits, it would have been one which related predominantly to national security and public safety, but did not exclude the other important considerations outlined in the Guidelines or any analogous considerations” – The Minister’s implied interpretation of the term “national interest”, namely that it was focused on matters related to national security and public safety, but also encompassed the other important considerations outlined in the Guidelines and any analogous considerations, was reasonable because it accorded with the plain words of the provision, its legislative history, its evident purpose, and its statutory context – See paragraphs 60 to 64.
Aliens – Topic 1655
Exclusion and expulsion – Immigration – Deportation – Grounds for – Inadmissibility – Exception – Ministerial declaration that presence of permanent resident or foreign national not detrimental to the national interest – The Minister of Public Safety and Emergency Preparedness denied Agraira’s application under s. 34(2) of the Immigration and Refugee Protection Act for relief from a determination that he was inadmissible on security grounds – The Supreme Court of Canada held that the Minister’s implied interpretation of the term “national interest” in s. 34(2), namely that it was focused on matters related to national security and public safety, but also encompassed the other important considerations outlined in Chapter 10 of the Citizenship and Immigration Canada’s Inland Processing Manual: “Refusal of National Security Cases/Processing of National Interest Requests”, and any analogous considerations, accorded with the plain words of the provision – The court stated that “… the term ‘national interest’ refers to matters which are of concern to Canada and to Canadians. There is no doubt that public safety and national security are matters which are of concern to Canada and to Canadians. It is equally clear, however, that more than just public safety and national security are of concern to Canada and to Canadians. For example, the plain meaning of the term ‘national interest’ would also include the preservation of the values that underlie the Canadian Charter of Rights and Freedoms and the democratic character of the Canadian federation, and in particular the protection of the equal rights of every person to whom its laws and its Constitution apply. The plain words of the provision therefore favour a broader reading of the term ‘national interest’ than the one suggested by the respondent and by the Federal Court of Appeal, which would limit its meaning to the protection of public safety and national security” – See paragraph 65.
Aliens – Topic 1655
Exclusion and expulsion – Immigration – Deportation – Grounds for – Inadmissibility – Exception – Ministerial declaration that presence of permanent resident or foreign national not detrimental to the national interest – Section 34(2) of the Immigration and Refugee Protection Act (IRPA) provided for relief from a finding of inadmissibility on security grounds under s. 34(1) “in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest” – The Supreme Court of Canada stated that “the respondent’s argument that s. 34(2) is focused exclusively on national security and public safety, and that it provides for relief only for innocent or coerced members of terrorist organizations, fails to give adequate consideration to the other objectives of the IRPA. Section 3(1) of the IRPA sets out 11 objectives of the Act with respect to immigration. Only two of these are related to public safety and national security … The other nine objectives relate to other factors that properly inform the interpretation of the term ‘national interest’ … The explicit presence of these other objectives in the IRPA strongly suggests that this term is not limited to public safety and national security, but that the Parliament of Canada also intended that it be interpreted in the context of the values of a democratic state. Section 34 is intended to protect Canada, but from the perspective that Canada is a democratic nation committed to protecting the fundamental values of its Charter and of its history as a parliamentary democracy” – See paragraphs 76 to 79.
Aliens – Topic 1655
Exclusion and expulsion – Immigration – Deportation – Grounds for – Inadmissibility – Exception – Ministerial declaration that presence of permanent resident or foreign national not detrimental to the national interest – The Minister of Public Safety and Emergency Preparedness denied Agraira’s application under s. 34(2) of the Immigration and Refugee Protection Act (IRPA) for relief from a determination that he was inadmissible on security grounds – The Federal Court allowed Agraira’s application for judicial review – The Federal Court of Appeal allowed the Minister’s appeal – Agraira appealed – He argued that the Minister took an overly narrow view of the term “national interest” in s. 34(2) by equating it with national security and public safety – The Supreme Court of Canada stated, inter alia, “the respondent argues that, because of the possibility of H&C relief under s. 25 of the IRPA, the principle of consistent expression dictates that H&C factors should not be relevant to a determination of what is in the national interest under s. 34(2). I agree, but with some qualifications. H&C considerations are more properly considered in the context of a s. 25 application, and s. 34 should not be transformed into an alternative form of review. But s. 34 does not necessarily exclude the consideration of personal factors that might be relevant to this particular form of review. For example, such considerations may have an impact on the assessment of the applicant’s personal characteristics for the purpose of determining whether he or she can be viewed as a threat to the security of Canada. Of the considerations in the Guidelines unrelated to national security and public safety which formed part of the Minister’s implied interpretation, only very few are H&C factors. The fact that the Minister considered such factors did not render his interpretation of the term ‘national interest’ unreasonable” – See paragraph 84.
Aliens – Topic 1655
Exclusion and expulsion – Immigration – Deportation – Grounds for – Inadmissibility – Exception – Ministerial declaration that presence of permanent resident or foreign national not detrimental to the national interest – Section 34(2) of the Immigration and Refugee Protection Act (IRPA) provided for relief from a finding of inadmissibility on security grounds under s. 34(1) “in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest” – The Supreme Court of Canada stated, inter alia, “the broader context of s. 34(2) of the IRPA also includes the Guidelines [Chapter 10 of the Citizenship and Immigration Canada’s Inland Processing Manual: ‘Refusal of National Security Cases/Processing of National Interest Requests’]. Although not law in the strict sense, and although they are liable to evolve over time as the context changes, thus giving rise to new requirements adapted to different contexts, guidelines are ‘a useful indicator of what constitutes a reasonable interpretation of the . . . section’ … the Guidelines represent a broad approach to the concept of the ‘national interest’. They do not simply equate the ‘national interest’ with national security and public safety … Rather, they suggest that the national interest analysis is broader than that, although its focus may properly be on national security and public safety” – See paragraph 85.
Aliens – Topic 1655
Exclusion and expulsion – Immigration – Deportation – Grounds for – Inadmissibility – Exception – Ministerial declaration that presence of permanent resident or foreign national not detrimental to the national interest – Agraira, a citizen of Libya, had resided in Canada since 1997 – He was found to be inadmissible on security grounds in 2002 based on his membership in the Libyan National Salvation Front (LNSF), a terrorist organization according to Citizenship and Immigration Canada – Agraira applied under s. 34(2) of the Immigration and Refugee Protection Act (IRPA) for ministerial relief from the determination of inadmissibility – His application was denied – The Minister of Public Safety and Emergency Preparedness concluded that it was not in the national interest to admit individuals who had had sustained contact with known terrorist and/or terrorist-connected organizations – The Federal Court allowed Agraira’s application for judicial review of the Minister’s decision – The Federal Court of Appeal allowed the Minister’s appeal – Agraira appealed – He argued that the Minister took an overly narrow view of the term “national interest” in s. 34(2) of the IRPA – The Supreme Court of Canada dismissed the appeal – The Minister weighed all the factors set out in Agraira’s application which were relevant to determining what was in the “national interest” in light of his reasonable interpretation of that term – He gave particular weight to certain factors pertaining to national security and public safety, namely: Agraira’s contradictory and inconsistent accounts of his involvement with the LNSF; the fact that Agraira was most likely aware of the LNSF’s previous activity; and the fact that Agraira had had sustained contact with the LNSF – Neither the result nor the Minister’s decision as a whole was unreasonable – See paragraphs 89 to 92.
Aliens – Topic 1655
Exclusion and expulsion – Immigration – Deportation – Grounds for – Inadmissibility – Exception – Ministerial declaration that presence of permanent resident or foreign national not detrimental to the national interest – [See both
Administrative Law – Topic 2267
,
Statutes – Topic 1451
,
Statutes – Topic 2259
,
Statutes – Topic 2265
and
Statutes – Topic 2402
].
Aliens – Topic 4062
Practice – Judicial review and appeals – Powers of review of appellate court (incl. standard of review) – The Minister of Public Safety and Emergency Preparedness denied Agraira’s application under s. 34(2) of the Immigration and Refugee Protection Act (IRPA) for relief from a determination that he was inadmissibile on security grounds – The Federal Court allowed Agraira’s application for judicial review – The Federal Court of Appeal allowed the Minister’s appeal – Agraira appealed – The Supreme Court of Canada stated that the standard for reviewing decisions on applications for ministerial relief under s. 34(2) of the IRPA had been satisfactorily determined in past decisions to be reasonableness – The applicability of the reasonableness standard could be confirmed by the approach discussed in Dunsmuir (S.C.C.) – Since a decision by the Minister under s. 34(2) was discretionary, the deferential standard of reasonableness applied – Also, because such a decision involved the interpretation of the term “national interest” in s. 34(2), it could be said that it involved a decision maker “interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” – That factor also confirmed that the applicable standard was reasonableness – See paragraphs 49 to 50.
Aliens – Topic 4062
Practice – Judicial review and appeals – Powers of review of appellate court (incl. standard of review) – The Minister of Public Safety and Emergency Preparedness denied Agraira’s application under s. 34(2) of the Immigration and Refugee Protection Act (IRPA) for relief from a determination that he was inadmissibile on security grounds – The Federal Court allowed Agraira’s application for judicial review – The Federal Court of Appeal allowed the Minister’s appeal – Agraira appealed – The Supreme Court of Canada stated that “The first issue in this appeal concerns the standard of review applicable to the Minister’s decision. But, before I discuss the appropriate standard of review, it will be helpful to consider once more the interplay between (1) the appellate standards of correctness and palpable and overriding error and (2) the administrative law standards of correctness and reasonableness. These standards should not be confused with one another in an appeal to a court of appeal from a judgment of a superior court on an application for judicial review of an administrative decision. … The issue for our consideration can thus be summarized as follows: Did the application judge choose the correct standard of review and apply it properly?” – See paragraphs 45 to 47.
Statutes – Topic 501
Interpretation – General principles – Purpose of legislation – Duty to promote object of statute – [See third
Aliens – Topic 1655
].
Statutes – Topic 1201
Interpretation – Construction where meaning is plain – General principles – [See second
Aliens – Topic 1655
].
Statutes – Topic 1451
Interpretation – Construction where meaning is not plain – Aids or methods to determine meaning – Legislative history – Reference to former similar Acts – The Minister of Public Safety and Emergency Preparedness denied Agraira’s application under s. 34(2) of the Immigration and Refugee Protection Act for relief from a determination that he was inadmissible on security grounds – The Supreme Court of Canada held that the Minister’s implied interpretation of the term “national interest” in s. 34(2), namely that it related predominantly to national security and public safety, but did not exclude the other important considerations outlined in Chapter 10 of the Citizenship and Immigration Canada’s Inland Processing Manual: “Refusal of National Security Cases/Processing of National Interest Requests” or any analogous considerations, was consistent with the legislative history of the provision – The court stated that “Parliament was (or at least must be taken to have been) aware of the previous ‘detrimental to the security of Canada’ test when it decided to enact, and later to keep, the ‘national interest’ test for ministerial relief. The fact that, at all material times, the wording of s. 34(2) referred to the applicant’s not being detrimental to the ‘national interest’, as opposed to not being detrimental to the ‘security of Canada’, strongly suggests that Parliament did not intend the term ‘national interest’ to relate exclusively to national security and public safety. Had that been the case, Parliament could have returned to the expression ‘security of Canada’ in enacting s. 34(2)” – See paragraphs 66 to 75.
Statutes – Topic 2259
Interpretation – Presumptions and rules in aid – Against alteration of law – The Minister of Public Safety and Emergency Preparedness (the Minister) denied Agraira’s application under s. 34(2) of the Immigration and Refugee Protection Act (IRPA) for relief from a determination that he was inadmissible on security grounds – The Federal Court allowed Agraira’s application for judicial review – The Federal Court of Appeal allowed the Minister’s appeal – Agraira appealed – He argued that the Minister took an overly narrow view of the term “national interest” in s. 34(2) of the IRPA by equating it with national security and public safety – The respondent argued that the legislative transfer of the responsibility for making decisions under s. 34(2) from the Minister of Citizenship and Immigration to the Minister, occurring as it did in the broader context of national security and public safety, supported the Federal Court of Appeal’s interpretation of the term “national interest” – The Supreme Court of Canada stated that “I am not persuaded that the transfer of ministerial responsibility for s. 34(2) applications serves as a sufficient basis for upholding the Federal Court of Appeal’s interpretation of the term ‘national interest’. On its own, this transfer should not be read as changing, nor does it change, the substantive law governing relief applications under s. 34(2). … If this argument was valid, it would imply that the meaning of a law might change whenever ministerial responsibilities are reassigned. This would be a new and perplexing principle of interpretation. There is a presumption against the implicit alteration of the law according to which, absent an explicit change in the wording of a provision, it is presumed that Parliament did not intend to amend its meaning. Although the ministerial responsibility for deciding relief applications under s. 34(2) was transferred in 2005, Parliament did not amend the wording of this provision” – See paragraphs 73 to 74.
Statutes – Topic 2265
Interpretation – Presumptions and rules in aid – Against change in terminological usage (consistent expression) – Section 34(2) of the Immigration and Refugee Protection Act (IRPA) provided for relief from a finding of inadmissibility on security grounds under s. 34(1) “in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest” – The Supreme Court of Canada stated that “according to the presumption of consistent expression, when different terms are used in a single piece of legislation, they must be understood to have different meanings. If Parliament has chosen to use different terms, it must have done so intentionally in order to indicate different meanings. The term ‘national interest’ is used in s. 34(2), which suggests that what is to be considered by the Minister under that provision is broader than the considerations of whether the individual is ‘a danger to the security of Canada’ (s. 34(1)(d)) or whether he or she ‘might endanger the lives or safety of persons in Canada’ (s. 34(1)(e)), both of which appear in s. 34(1). If Parliament had intended national security and public safety to be the only considerations under s. 34(2), it could have said so using the type of language found in s. 34(1). It did not do so, however. In a similar vein, the terms ‘national security’, ‘danger to the public’ and ‘endanger the safety of any person’ each appear several times elsewhere in the IRPA. In light of the presumption of consistent expression, ‘national interest’ cannot be synonymous with any of these terms. Rather, the use of the term ‘national interest’ implies that the Minister is to carry out a broader analysis under s. 34(2). … in determining whether a person’s continued presence in Canada would not be detrimental to the national interest, the Minister must consider more than just national security and whether the applicant is a danger to the public or to the safety of any person” – See paragraphs 81 to 82.
Statutes – Topic 2402
Interpretation – Interpretation of words and phrases – General principles – Avoidance of absurdity – Section 34(2) of the Immigration and Refugee Protection Act provided for relief from a finding of inadmissibility on security grounds under s. 34(1) “in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest” – The Supreme Court of Canada stated, inter alia, “if s. 34(2) were concerned solely with the danger an applicant poses to the security of Canada, it would be impossible for a person found to be inadmissible under s. 34(1)(d) (“being a danger to the security of Canada”) to obtain relief under s. 34(2). This is an absurd interpretation which must be avoided” – See paragraph 83.
Words and Phrases
National interest
– The Supreme Court of Canada considered the meaning of the term “national interest” in s. 34(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 – See paragraphs 55 to 88.
Cases Noticed:
Abdella v. Canada (Minister of Public Safety and Emergency Preparedness) (2009), 355 F.T.R. 86; 2009 FC 1199, refd to. [para. 17].
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 28].
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 29].
New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 38].
Telfer v. Canada Revenue Agency (2009), 386 N.R. 212; 2009 FCA 23, refd to. [para. 45].
Merck Frosst Canada Ltd. v. Canada (Minister of Health), [2012] 1 S.C.R. 23; 426 N.R. 200; 2012 SCC 3, refd to. [para. 46].
Esmaeili-Tarki v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 311; 2005 FC 509, refd to. [para. 40].
Miller v. Canada (Solicitor General) et al., [2007] 3 F.C.R. 438; 297 F.T.R. 203; 2006 FC 912, refd to. [para. 49].
Naeem v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 658; 308 F.T.R. 256; 2007 FC 123, refd to. [para. 49].
Al Yamani v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2007), 311 F.T.R. 193; 2007 FC 381, refd to. [para. 49].
Soe v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 307; 2007 FC 461, refd to. [para. 49].
Kanaan v. Canada (Minister of Public Safety and Emergency Preparedness), [2008] F.T.R. Uned. 171; 71 Imm. L.R.(3d) 63; 2008 FC 241, refd to. [para. 49].
Chogolzadeh v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 327 F.T.R. 39; 2008 FC 405, refd to. [para. 49].
Tameh v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 332 F.T.R. 158; 2008 FC 884, refd to. [para. 49].
Kablawi v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2008), 333 F.T.R. 300; 2008 FC 1011, refd to. [para. 49].
Ramadan v. Canada (Minister of Citizenship and Immigration) et al. (2008), 335 F.T.R. 227; 2008 FC 1155, refd to. [para. 49].
Afridi v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2008] F.T.R. Uned. 830; 75 Imm. L.R.(3d) 291; 2008 FC 1192, refd to. [para. 49].
Ismeal v. Canada (Minister of Public Safety and Emergency Preparedness), [2008] F.T.R. Uned. 965; 75 Imm. L.R.(3d) 310; 2008 FC 1366, refd to. [para. 49].
Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 52].
Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al., [2012] 3 S.C.R. 405; 437 N.R. 202; 2012 SCC 65, refd to. [para. 53].
Alberta Teachers’ Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, appld. [para. 57].
Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 64].
Medovarski v. Canada (Ministre de la Citoyenneté et de l’Immigration), [2005] 2 S.C.R. 539; 339 N.R. 1; 2005 SCC 51, refd to. [para. 77].
Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 80].
Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 91].
Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 96].
Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 97].
Reference Re Canada Assistance Plan Act (B.C.) – see Reference Re Constitutional Question Act (B.C.).
Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 97].
Statutes Noticed:
Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 25(1), sect. 25.1(1) [para. 40]; sect. 34 [para. 42].
Authors and Works Noticed:
Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998 Looseleaf updated August 2012), generally [para. 95].
Canada, Citizenship and Immigration, Inland Processing Manual, c. 10, “Refusal of National Security Cases/Processing of National Interest Requests”, October 24, 2005 [para. 3].
Canada, Senate, Standing Committee on Social Affairs, Science and Technology, “Ninth Report”, 1st Sess., 37th Parl., October 23, 2001 (online: http://www.parl.gc.ca) [para. 71].
Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 64].
Counsel:
Lorne Waldman, Jacqueline Swaisland and Clare Crummey, for the appellant;
Urszula Kaczmarczyk and Marianne Zoric, for the respondent;
Written submissions only by Jill Copeland and Colleen Bauman, for the intervener, the British Columbia Civil Liberties Association;
Leigh Salsberg, for the intervener, Ahmad Daud Maqsudi;
John Norris and Andrew Brouwer, for the interveners, the Canadian Council for Refugees and the Canadian Association of Refugee Lawyers;
Barbara Jackman and Hadayt Nazami, for the interveners, the Canadian Arab Federation and the Canadian Tamil Congress.
Solicitors of Record:
Waldman & Associates, Toronto, Ontario, for the appellant;
Attorney General of Canada, Toronto, Ontario, for the respondent;
Sack Goldblatt Mitchell, Toronto, Ontario, for the intervener, the British Columbia Civil Liberties Association;
Leigh Salsberg, Toronto, Ontario, for the intervener, Ahmad Daud Maqsudi;
Simcoe Chambers, Toronto, Ontario; Refugee Law Office, Toronto, Ontario, for the interveners, the Canadian Council for Refugees and the Canadian Association of Refugee Lawyers;
Jackman Nazami & Associates, Toronto, Ontario, for the interveners, the Canadian Arab Federation and the Canadian Tamil Congress.
This appeal was heard on October 18, 2012, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered by LeBel, J., in both official languages on June 20, 2013.
