Concurrent Jurisdiction: Citizenship Act, s. 10.5(1)

I recently speculated about the scope of the new correctness category recognized by the Supreme Court of Canada in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30. At today’s Supreme Court of Canada hearing in Mason (see my post here: I was co-counsel for one of the intervenors, CARL), Justice Côté referenced the admissibility provisions of the Citizenship Act, RSC 1985, c C-29.

This legislation was not at issue in Mason, which is about the admissibility provisions of the Immigration and Refugee Protection Act, SC 2001, c 27, especially s. 34(1)(e). CARL argued for correctness review, based on the certified question procedure set out in s. 74.

But the Citizenship Act does contain a provision that could have significant consequences in other cases. It allows the Minister to apply to have someone declared inadmissible as a citizen of Canada and cross-references the IRPA:

On the request of the Minister of Public Safety and Emergency Preparedness, the Minister shall — in the originating document that commences an action under subsection 10.1(1) on the basis that the person obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances, with respect to a fact described in section 34, 35 or 37 of the Immigration and Refugee Protection Act other than a fact that is also described in paragraph 36(1)(a) or (b) or (2)(a) or (b) of that Act — seek a declaration that the person who is the subject of the action is inadmissible on security grounds, on grounds of violating human or international rights or on grounds of organized criminality under, respectively, subsection 34(1), paragraph 35(1)(a) or (b) or subsection 37(1) of the Immigration and Refugee Protection Act (s. 10.5(1)).

The “Court” here is the Federal Court. Section 10.5(1) gives the Federal Court concurrent jurisdiction with the variety of administrative decision-makers responsible for administering the IRPA. Is this not therefore a situation where “courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute” (Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, at para. 28) such that correctness is the appropriate standard of review of the specified sections of the IRPA? If s. 10.5(1) does fit into the Entertainment Software Association correctness category, this would mean that in any Federal Court proceedings raising the interpretation of the specified sections of the IRPA, which could relate to citizenship or immigration admissibility, the correctness standard would apply.

I do not think this provision is relevant to the disposition of the appeal in Mason, or to determining the standard of review of certified questions under the IRPA, but it would be no surprise to see it raised before too long in aid of an argument that the Federal Court should apply the correctness standard in immigration matters touching the specified sections.

This content has been updated on November 29, 2022 at 19:57.