Unreasonable Interpretations of Law Redux: Mason v. Canada (Citizenship and Immigration), 2019 FC 1251
I posted earlier this year about divergent approaches on Canadian courts of appeal to the application of the deferential standard of reasonableness to administrative interpretations of law. There was, on the one hand, the aggressive use by the British Columbia Court of Appeal of the principles of statutory interpretation to determine the best possible reading of a legislative provision and, on the other hand, the Federal Court of Appeal’s insistence that a reviewing court should not seek out the best possible reading and use it as a yardstick against which to measure the impugned interpretation. See also, leaning to the BC side of the ledger, Unifor Local 2121 v Newfoundland and Labrador (Labour Relations Board), 2019 NLCA 55, where Green JA declined to intervene because, having applied the principles of statutory interpretation, he agreed with the Board’s interpretation (at para. 91).
The application of reasonableness review to questions of statutory interpretation is an important issue, on which the Supreme Court of Canada has — remarkably — said little or nothing. As Gauthier JA observed in Canada (Citizenship and Immigration) v. Huruglica,  4 FCR 157, at para. 41, “it is sometimes difficult to apply the standard of reasonableness to pure questions of statutory interpretation, and…further guidance from the Supreme Court would be welcomed as to the type of analysis that courts should perform in such cases”. Three years later, no such “further guidance” has been received and, as such, it has been left to other courts to fill the resulting void. The most recent contribution is Grammond J’s scholarly analysis in Mason v. Canada (Citizenship and Immigration), 2019 FC 1251.
The particular issue here related to the inadmissibility provisions of Canada’s immigration legislation. Section 34(1)(e) of the Immigration and Refugee Protection Act makes inadmissible anyone “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”. The applicant was charged with attempted murder after discharging a firearm and injuring two people at a concert at the Canadian Legion in British Columbia. The charges were stayed, however, and the applicant was thus not convicted. The Minister argued — and the Immigration Appeal Division agreed — that the applicant’s conduct came within s.34(1)(e). Ultimately, Grammond J agreed with the applicant that it was unreasonable to interpret s.34(1)(e) as encompassing “acts of violence” which do not occur in the context of terrorism, war crimes or organized criminality, these being the concerns underpinning the inadmissibility provisions of the Act.
Having considered the limited scholarly and judicial literature on unreasonable interpretations of law (at paras. 14-19), Grammond J commented that “it is not useful to set aside the principles of statutory interpretation when we review administrative decisions”, as in their modern form these “are not overly legalistic or technical” and, “quite frankly, we have no alternative set of principles to apply in the administrative context” (at para. 20). As to the principles of statutory interpretation, Grammond J offered insightful observations (at para. 22):
In reality, methods of statutory interpretation provide guides, “clues” or “pointers.” They provide reasons for preferring one interpretation over another. Their weight depends on the problem at hand. For example, in one situation the literal method may be inconclusive, while the purposive method may provide a strong argument. In some situations all the methods point towards one interpretation; in others, the methods point in different directions. They reduce the uncertainty regarding the meaning of legislation but they cannot eliminate it in all cases. Thus, on judicial review, the methods of statutory interpretation should be used not to determine one correct answer, but to decide whether the interpretation chosen by the decision-maker is one “that the statutory language can reasonably bear” (McLean v British Columbia (Securities Commission), 2013 SCC 67 (CanLII) at paragraph 40,  3 SCR 895) [McLean].
Assessing the relevance of these “clues” or “pointers” is primarily a matter for the administrative decision-maker charged with interpeting a given statutory provision. On judicial review, the court’s role is to “assess the arguments, not to redo the weighing exercise, but rather to ensure that the decision-maker did not overlook a very strong argument – a ‘knock-out punch’ – or choose one interpretation when the ‘clues’ pointed overwhelmingly in the other direction” (at para. 25). The approach taken to allegations of factual error is instructive: reviewing courts do not reweigh the matters taken into consideration by the administrative decision-maker, but may intervene where significant evidence has been disregarded without explanation or findings of fact were made in the face of overwhelming evidence to the contrary (at para. 26). If there is “conclusive evidence of Parliament’s intent” for a contrary interpretation of law to the one adopted by an administrative decision-maker, the reviewing court should insist upon it (at para. 27). However, “[w]hile there will be cases where there is only one reasonable outcome, this will be the result, and not the premise, of the interpretive exercise” (at para. 34) and “nothing turns on whether the provision at issue is ‘clear’ or ‘ambiguous'” (at para. 35).
On the merits, the “structure” of the inadmissibility provisions provided a knock-out punch to counter the Minister’s interpretation (at para. 38):
This review of the structure of the inadmissibility regime shows that it is the result of a number of policy choices as to the degree of seriousness of the different grounds for inadmissibility, the availability of an appeal or other forms of relief and the standard of proof. In this regard, criminality stands apart from other grounds of inadmissibility, in that criminality requires a conviction if the offence was committed in Canada and its regime is carefully calibrated according to several factors including the seriousness of the offence and whether it was committed by a permanent resident or a foreign national.
The IAD’s decision upsets the carefully crafted structure of the Act. The IAD’s interpretation of section 34(1)(e) brings under that provision a vast range of criminal offences that “would or might endanger the lives or safety of persons in Canada.” It does not require a conviction. It may relate to the likelihood of future events, instead of offences that have been committed. There are few internal limits to the range of conduct covered, as the concept of “safety of persons” may be given a wide scope…
The IAD’s interpretation thwarts Parliament’s intention and policy choices in at least two ways. First, the IAD’s interpretation brings under the most severe category of inadmissibility a vast range of conduct that includes…offences that Parliament considered not to be serious enough to warrant deportation, especially in the case of permanent residents, could nevertheless lead to inadmissibility. Second, it discards the requirement of a conviction…Even though inadmissibility is not in and of itself a penal consequence, Parliament made the policy choice to require a conviction and proof beyond a reasonable doubt for someone to become inadmissible for reasons of criminality (at paras. 48-50).
Grammond J’s is a sophisticated attempt to grapple with the difficult issue of unreasonableness in the context of statutory interpretation. I would offer three observations.
First, I wholeheartedly endorse Grammond J’s insistence that the principles of statutory interpretation should not be used to identify the ‘clear’ or only possible meaning of a given provision. There is, however, now an obvious divide between the federal courts (see especially the analysis of Stratas JA in Hillier v. Canada (Attorney General), 2019 FCA 44, at paras. 13-17) and courts elsewhere in Canada. The Supreme Court will have to weigh in decisively on this issue in the near future.
Second, what function should the principles of statutory interpretation play in judicial review of an administrative interpretation of law? I argued in “Unreasonable Interpretations of Law” that the “technical principles of statutory interpretation” should play “no role” in reasonableness review ((2014) 66 SCLR (2d) 233 at 265). My primary concern was that “statutory provisions and purposes should not be treated by reviewing courts as trump cards to justify judicial intervention” (ibid at 266). I do not have any great difficulty with statutory text, purpose and context (as interpreted by the administrative decision-maker) being used in a commonsense way to highlight badges or indicia of unreasonableness in an administrative decision (ibid at 259-269).
Indeed, I would say that the problem created by the IAD’s interpretation in Mason was that it introduced an illogicality into the statutory scheme, undermining its structure. I do not think that one needs to have a mastery of the principles of statutory interpretation to appreciate the problems revealed by Grammond J’s analysis at paras. 39-51. A mastery of Canada’s official languages is sufficient. Moreover, “the IAD itself failed to address the structural argument, despite Mr. Mason’s raising it” (at para. 53). On its own, and in the absence of an explanation for failing to address the argument, this would arguably have justified quashing the decision.
Third, consistent with my scepticism about the value of metaphors in administrative law, I am less sure about the “knock-out punch” concept. Grammond J gives the example of Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53,  3 SCR 471, where the legislative history “made it clear that Parliament had explicitly considered, and rejected, giving the Tribunal power to award costs”, which was fatal to the Tribunal’s decision to interpret its power to grant “expenses” as including legal costs (at para. 30). Yet if the knock-out punch was so obvious, why did the Tribunal win on the interpretation point at the Federal Court (2008 FC 118), and why did legislative history play only a subsidiary role in the analysis of the Federal Court of Appeal (2009 FCA 309, at paras. 88-90)? Elegant and all as the metaphor is, I am not sure it can do the analytical heavy lifting in the application of reasonableness review to administrative interpretations of law.
This content has been updated on October 23, 2019 at 22:13.