When is commission or suspicion insufficient grounds for inadmissibility?

by Michael Scott

On September 27, 2023, the Supreme Court of Canada made an important ruling to limit the power of immigration officials and tribunals to remove foreign nationals with no criminal conviction on security grounds.

The case before the Supreme Court, Mason v. Canada (Citizenship and Immigration Canada), concerned Earl Mason and Seifeslam Dleiow, both foreign nationals in Canada. Mr. Mason had been charged with attempted murder and discharging a firearm following an argument in a bar, but the charges were dropped because of delay. Mr. Dleiow is alleged to have engaged in acts of violence against intimate partners, but some charges were dropped, and the subject plead guilty to others.

Canada Border Services Agencies (CBSA) prepared reports alleging that both were inadmissible to Canada under s.24(1)(e) of the Immigration Act (IRPA). It is important to consider the use of the section to challenge both applicants and the outcome of the Supreme Court decision.

First, IRPA s.34(1)(e) does not deal with a charge specifically nor a conviction but rather allegations of the commission of an offence, for “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada.” It is possible for applicants to be deemed inadmissible based upon their commission of an offence not their formal charges, prosecution, or proven guilt. The cases under consideration are not proven criminality but rather on the decision of immigration officials to determine they represent a security risk to the Canadian public and should be deported from the country as inadmissible persons. In both the cases of Dleiow and Mason, CBSA were issued judgments based on what is called “second 34 inadmissibility,” which were later upheld by lower courts.

The wording in section 34 sets forth the justification used by departmental officials to declare the persons inadmissible to Canada under IRPA s.34(1)(e), “A permanent resident or a foreign national is inadmissible on security grounds for … (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada.” The two individuals did not engage in espionage against Canada, nor in subversive actions against the government, nor terrorism. They do not represent a security risk to the country but rather engaged in activities that might endanger the public. Neither Mr. Mason nor Dleiow were members of an organization that engage in such acts. Yet both have been judged as inadmissible under IRPA s34(1)(e) and face deportation. The issue is not the threat the country faces – by the government officials’ assessment – but rather the wide application of the provision.

The two cases have been tried at several levels of administrative law. The initial refusal was issued by the department as “section 34 inadmissibility” based on actions, which “might endanger the lives and safety of persons in Canada.”

The question was then debated at several courts of appeal. The IAD supported the inadmissibility decision, but the subsequent Federal Court disagreed. The government appealed and the Federal Court of Appeal overturned the decision and supported the initial inadmissibility decision but the subjects facing deportation from Canada on minor charges took their appeal to the highest court in the land, the Supreme Court of Canada. The Supreme Court overruled the lower courts and made a decision based upon the primary consideration that neither Mason nor Dleoiw represent a present security danger to Canada.

The decision in Mason v. Canada, is set forth in paragraph 186: “For these reasons, in addition to those identified by my colleague and by Grammond J. in the Federal Court, I would conclude that inadmissibility under s. 34(1)(e) requires a nexus between the relevant act of violence and with national security or the security of Canada. However, it remains the task of administrative decision makers under the IRPA to apply this interpretation going forward, including determining which acts of violence may indeed qualify as a threat to national security or the security of Canada.”

Judge Mahmud Jamal’s decision is significant for administrative justice. The decision of the Supreme Court set a decision which now applies to all lower courts (“stare decesis”) that courts must respond to proven or real threats to Canadian security, not supposition alone. The decision to declare persons inadmissible on security grounds, under section 34(1) (e) should be based on real acts of violence or a nexus (connection) with national security.

Michael Scott is a Regulated Canadian Immigration Consultant (RCIC, R525678) who has 30 years of experience with Immigration Canada and the Manitoba Provincial Nominee Program. He currently works as a licensed consultant with Immigration Connexion International Ltd. Contact him at 204-691-1166 or 204-227-0292. E-mail: mscott.ici@gmail.com.