Certified Questions After Kanthasamy

Section 74(d) of Canada’s Immigration and Refugee Protection Act provides that an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the Federal Court certifies that a serious question of general importance is involved and states the question.  Certified questions have traditionally resolved divergent jurisprudence at the Federal Court, and have typically provided certainty on how immigration law is to be interpreted.  However, as a result of recent Supreme Court of Canada decisions, this is changing.

In Agraira v. Canada (Public Safety and Emergency Preparedness)the Supreme Court of Canada applied the reasonableness standard to answer the following certified question:

When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest?

The decision to not provide a definite answer caused some confusion at the Federal Court of Appeal, which declared in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, that:

 A decision made under the Act is subject to judicial review only if leave is granted by the Federal Court (subsection 72(1) of the Act). The Federal Court’s decision on the judicial review cannot be appealed unless the Federal Court certifies a serious question of general importance (paragraph 74(d) of the Act). This case, like Agraira has proceeded to this Court on the basis of a certified question from the Federal Court. In this case, as in Agraira, the certified question asks a question that requires an interpretation of a provision of the Act.

This Court has consistently taken the view that where a certified question asks a question of statutory interpretation, this Court must provide the definitive interpretation without deferring to the administrative decision-maker. Then, this Court must assess whether there are grounds to set aside the outcome reached by the administrative decision-maker on the facts and the law….

Until Agraira, the Supreme Court approached immigration matters in the same way. The Supreme Court assessed whether this Court correctly answered the stated question on statutory interpretation. See e.g., Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57 (CanLII), [2005] 2 S.C.R. 706. Then it proceeded to assess, on the basis of the deferential reasonableness standard, whether there were grounds to set aside the outcome reached. On that part of the review, the Supreme Court has emphasized the need for “considerable deference [to] be accorded to immigration officers exercising the powers conferred by the legislation,” given “the fact-specific nature of the inquiry, [subsection 25(1)’s] role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language”: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paragraph 62.

In Agraira, the Supreme Court conducted reasonableness review on the administrative decision-maker’s decision on the statutory interpretation issue, ignoring the fact that the case proceeded in this Court in response to a certified question from the Federal Court. It did not vet this Court’s answer to the stated question.

There is nothing in the Supreme Court’s reasons in Agraira to explain this apparent change in approach. For that reason, until some clarification from the Supreme Court is received, it is my view that this Court should continue to follow its practice of providing the definitive answer to a certified question on a point of statutory interpretation. In reaching that conclusion, I note that the Supreme Court in Agraira did not say or suggest that this Court’s practice was wrong.

In this Court, providing the definitive answer to a certified question on a point of statutory interpretation is the functional equivalent of engaging in correctness review. But this is merely an artefact of having a certified question put to us. It is not a comment on the standard of review of Ministers’ interpretations of statutory provisions generally .

The Supreme Court of Canada in  Kanthasamy v. Canada (Citizenship and Immigration), [2015] 3 SCR 909, 2015 SCC 61, held that the replacement of the correctness standard for questions that are certified as being of general importance with the reasonableness standard was not a one-off. It stated:

In this case, the Federal Court applied a reasonableness standard. The Federal Court of Appeal, however, concluded that the appropriate standard of review was correctness because there was a certified question. It suggested that this Court’s approach in Agraira, where the standard of review was reasonableness despite the presence of a certified question, was at odds with the prior case law. I respectfully disagree.

The Federal Court of Appeal refers to one case from this Court to support this point: Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57 (CanLII), [2005] 2 S.C.R. 706. This case is not particularly helpful. It was decided before Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190, there was no discussion of the impact of a certified question on the issue of standard of review, and the parties asked that correctness be applied: para. 71. In any event, the case law from this Court confirms that certified questions are not decisive of the standard of review: Baker, at para. 58; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3 (CanLII), [2002] 1 S.C.R. 84, at para. 23. As the Court said in Baker, at para. 12, the certification of a question of general importance may be the “trigger” by which an appeal is permitted. The subject of the appeal is still the judgment itself, not merely the certified question. The fact that the reviewing judge in this case considered the question to be of general importance is relevant, but not determinative. Despite the presence of a certified question, the appropriate standard of review is reasonableness: Baker, at para. 62.

Paul Daly, Associate Dean and Faculty Secretary at the Faculty of Law, Université de Montréal, is a frequent commentator on administrative law in Canada.  In this blog post titled “Can This Be Correct? Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, he perfectly summarizes the problem with this approach, which is that as a result of the reasonableness standard applying to certified questions of general importance that”deference is [now] due to decision-makers who have no legal expertise, who do not address relevant arguments expressly in their reasons, and who may reasonably come to diametrically opposed conclusions as to similarly situated individuals.”  The inanity that existed in citizenship law prior to Bill C-24, where citizenship judges could pick and choose which tests they chose to apply, will likely soon manifest itself in many areas of the law. Indeed, this possibility was explicitly affirmed by the Federal Court of Appeal in Tranwhere the Federal Court of Appeal ruled that as a result of the recent Supreme Court jurisprudence it would be reasonable for the Immigration and Refugee Board member to rule that a conditional sentence was a sentence that could lead to deportation, and that it would be perfectly reasonable for a different Immigration and Refugee Board member to reach the opposite conclusion.

The Federal Court of Appeal has now essentially asked Parliament to intervene, stating in Canada (Citizenship and Immigration) v. Huruglica that:

Kanthasamy will obviously have a tremendous impact, given that for many years, the Federal Court resorted to the certification process under subsection 74(d) to settle divergent interpretations or disagreements on legal issues of general importance. This Court’s providing the correct answer to certified questions appears to have been welcomed, particularly by the IAD and the RPD, who saw it as helpful in carrying out their functions.

The legislator is obviously empowered to set the standard of review that it wants to see applied to questions certified pursuant to subsection 74(d) of the IRPA. However, this must be done very clearly. Should the legislator wish to continue the system that was in place before Kanthasamy, it would be required to amend the IRPA and clarify its intention that certified questions be reviewed on a correctness standard.

In my opinion, it should.

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