Inadmissibility in Canada: Acts of Violence in Mason v. Canada

Arman, a permanent resident of Canada and a citizen of Armenia, lived peacefully in Canada for years. He worked hard, paid taxes, and contributed to his community. One evening, however, a heated argument at a Toronto bar escalated. The argument turned into a serious act of violence that harmed three innocent bystanders. Police quickly arrested Arman and charged him with multiple counts of assault causing bodily harm. The case went to trial. After a long process, the criminal court acquitted him due to a lack of reliable evidence. Arman thought his troubles were over. However, the Canada Border Services Agency (CBSA) was not ready to let it go. They sought to declare him inadmissible because of acts of violence. They believed that, despite the acquittal and lack of a criminal record, Arman’s violent behaviour still posed a threat to public safety. Arman wondered if they could try to remove him from Canada even without a criminal conviction.

Inadmissibility because of criminal offences in Canada

Under the IRPA, different sections address the inadmissibility of permanent residents and foreign nationals based on criminal activity. Section 36(1)(a) makes a person inadmissible for serious criminality if they have been convicted in Canada of an offence punishable by a maximum term of imprisonment of at least ten years. Alternatively, imprisonment for six months or more results in inadmissibility because of serious criminality. This section often applies to offences like aggravated assault, robbery, or other major criminal acts. Furthermore, it affects both permanent residents and foreign nationals.

Section 36(2)(a) covers criminality for convictions in Canada for offences prosecuted by indictment. This includes a broad spectrum of crimes that result in convictions. A conviction is critical for these provisions to apply. Without a formal conviction, a person cannot be declared inadmissible under these sections, even if their behaviour was harmful or reckless. However, this section only affects foreign nationals.

Understanding the difference between these sections is crucial. I have published another article that explains these sections. Keep in mind that criminal offences outside Canada could also result in inadmissibility. However, our focus in this article is on offences in Canada.

Inadmissibility because of Section 34(1)(e): Acts of Violence

Section 34(1)(e) addresses inadmissibility on security grounds for engaging in acts of violence that “would or might endanger the lives or safety of persons in Canada.” Unlike Section 36, Section 34 does not require a criminal conviction. Instead, it focuses on the nature of the act itself and whether it could be deemed a threat to public safety or national security. Authorities need only establish “reasonable grounds to believe” that the individual engaged in violent conduct that could pose a risk. This broader scope allows immigration authorities to seek removal even if a person has avoided conviction in a criminal court. The threshold here is significantly lower, and it relies heavily on the discretion of immigration officials and the evidence available to them.

This distinction is important. Unlike the stringent requirements of Section 36, where a criminal conviction is a prerequisite, Section 34 operates in a preventive capacity. It allows immigration authorities to intervene in cases where they believe an individual poses a broader risk to society, regardless of the outcome in criminal court. This can be unsettling for individuals like Arman, who say that an acquittal should mark the end of their troubles.

What happened in the case of Mason v. Canada?

The Mason v. Canada decision provides a critical insight into the distinction between criminality and security grounds for inadmissibility. Earl Mason and Seifeslam Dleiow, both foreign nationals, faced allegations of engaging in acts of violence. Mason had faced charges for firing a gun in a crowded bar. The charges were later stayed due to procedural issues and lack of evidence. Dleiow, on the other hand, pleaded guilty to lesser charges following allegations of domestic violence. Despite their violent behaviour, neither man had a conviction that could be used to declare them inadmissible under paragraph 36(1)(a). Immigration authorities faced a challenge: how could they remove these individuals from Canada without a criminal conviction?

The solution was to apply Section 34(1)(e), arguing that their violent acts made them inadmissible on security grounds. Using Section 34, authorities sought to bypass the need for a formal conviction and instead focus on the potential risk these individuals posed to public safety. This approach highlighted the flexibility of Section 34 as a tool for addressing situations where criminal law might have fallen short. However, it also raised concerns about fairness, due process, and the limits of immigration authorities’ power.

Issues reviewed by the SCC in Mason v. Canada

The Supreme Court of Canada (SCC) had to determine whether Section 34(1)(e) could be used so broadly. Under the Vavilov framework, the Court focused on the reasonableness of administrative decisions and whether the Immigration Appeal Division (IAD) acted within its legal bounds. The Vavilov standard requires that administrative decisions be transparent, intelligible, and justified. In this case, the SCC found that the IAD’s interpretation of Section 34 was too broad and lacked sufficient justification. The SCC emphasized the need for a reasonable link between the act of violence and national security concerns.

The Court also emphasized Canada’s non-refoulement obligations under the Refugee Convention. Non-refoulement means Canada cannot deport someone to a country where they would face persecution, torture, or other severe harm. This principle is fundamental to international refugee law and is codified in Canadian law under Section 115 of the IRPA.

The SCC concluded that Section 34 requires a nexus to national security, not just any violent act. Authorities’ use of Section 34 without linking it to national security risked violating international obligations, particularly when the individual could face harm if deported. Therefore, the broad interpretation by immigration authorities was deemed unreasonable, as it failed to consider these critical protections.

The SCC’s ruling in Mason v. Canada serves as an important reminder that immigration decisions must align with both domestic legal standards and international obligations. A clear link to national security must justify Section 34. Authorities cannot use it as a catch-all provision for any act of violence. This ruling ensures that individuals are not unfairly penalized based on allegations that do not meet the standard required for a security threat.

Book a consultation session if you are facing inadmissibility issues.

Facing inadmissibility issues can be complex and overwhelming. If you or your client are dealing with allegations involving acts of violence or other security-related concerns, it’s critical to understand the nuances between different grounds of inadmissibility. The distinction between Section 34 and Section 36 can mean the difference between staying in Canada and facing removal. The stakes are high, and having the right legal guidance can make all the difference. Book a consultation session to get your advice and navigate these complex issues effectively. Alternatively, you may fill out the following form to contact our team.

List of Cases

• Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 (CanLII), <https://canlii.ca/t/k0c85>, retrieved on 2024-11-13