Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (2009)

SUPREME COURT OF CANADA

Citation: Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, 2009 SCC 12

Date: 20090306

Docket: 31952

Between:

Minister of Citizenship and Immigration

Appellant and

Sukhvir Singh Khosa

Respondent

- and -

Immigration and Refugee Board

Intervener

Coram: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

Reasons for Judgment:

(paras. 1 to 68)

Reasons Concurring in the Result:

(paras. 69 to 137)

Reasons Concurring in the Result:

(para. 138)

Dissenting Reasons:

(paras. 139 to 161)

Binnie J. (McLachlin C.J. and LeBel, Abella and Charron JJ. concurring)

Rothstein J.

Deschamps J.

Fish J.

* Bastarache J. took no part in the judgment.

______________________________

Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, 2009 SCC 12

Minister of Citizenship and Immigration Appellant v.

Sukhvir Singh Khosa Respondent and

Immigration and Refugee Board Intervener

Indexed as: Canada (Citizenship and Immigration) v. Khosa

Neutral citation: 2009 SCC 12.

File No.: 31952.

2008: March 20; 2009: March 6.

Present: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the federal court of appeal

Administrative law - Judicial review - Standard of review - Immigration Appeal Division denying special relief on "humanitarian and compassionate grounds" from removal order - Standard of review applicable to Immigration Appeal Division decision - Whether common law of judicial review displaced by s. 18.1 of Federal Courts Act, R.S.C. 1985, c. F-7 - Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 67(1)(c).

K, a citizen of India, immigrated to Canada with his family in 1996, at the age of 14. In 2002, he was found guilty of criminal negligence causing death and received a conditional sentence of two years less a day. A valid removal order was issued to return him to India.

K appealed the order, but the majority of the Immigration Appeal Division ("IAD") of the Immigration and Refugee Board, after considering the Ribic factors and the evidence, denied "special relief" on humanitarian and compassionate grounds pursuant to s. 67(1)(c) of the Immigration and Refugee Protection Act ("IRPA"). A majority of the Federal Court of Appeal applied a "reasonableness" simpliciter standard and set aside the IAD decision. It found that the majority of the IAD had some kind of fixation with the fact that the offence was related to street-racing. On the issue of the "possibility of rehabilitation", the majority of the IAD merely acknowledged the findings of the criminal courts in that regard, which were favourable to K, and did not explain why it came to the contrary conclusion. In the end, that court concluded that the majority of the IAD had acted unreasonably in denying relief.

Held (Fish J. dissenting): The appeal should be allowed.

Per McLachlin C.J. and Binnie, LeBel, Abella and Charron JJ.: This Court's decision in Dunsmuir, which was released after the decisions of the lower courts in this case, recognized that, with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision has been allocated to administrative decision-makers in matters that relate to their special role, function and expertise. A measure of deference is appropriate whether or not the court has been given the advantage of a statutory direction, explicit or by necessary implication. These general principles of judicial review are not ousted by s. 18.1 of the Federal Courts Act which deals essentially with grounds of review of administrative action, not standards of review. [25]

A legislature has the power to specify a standard of review if it manifests a clear intention to do so. However, where the legislative language permits, the court (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based in part on Dunsmuir including a restrained approach to judicial intervention in administrative matters. [51]

Resort to the flexibility of the general principle of judicial review is all the more essential in the case of a provision like s. 18.1 of the Federal Courts Act which is not limited to particular issues before a particular adjudicative tribunal but covers the full galaxy of federal decision-makers who operate in different decision-making environments under different statutes with distinct grants of decision-making powers. [28] [33]

The language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief. Despite a difference in the meaning of the English and French versions in the relevant language of s. 18.1(4), the provision should be interpreted to permit a court to exercise its discretion in matte...

If you are already a vLex customer, Access Here