Supreme Court rejects deportation of non-citizens accused – but not convicted – of violent acts

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The Supreme Court of Canada has rejected the deportation of foreign nationals believed to have committed violent acts not linked to national security and for which they have not been convicted.

The court’s 8-0 ruling Wednesday blocked the federal government from deporting a man for unproven acts of violence. Earl Mason, a citizen of St. Lucia married to a Canadian citizen, was charged in 2012 with two counts of attempted murder for allegedly shooting a gun and wounding two people in a bar fight in Surrey, B.C. The charges were stayed by a prosecutor for unreasonable delay.

The Supreme Court applied its ruling to a second case, involving Seifeslam Dleiow of Libya, who was charged in 2017 with assaulting two former intimate partners, including beating one with a belt. Most of the charges were dropped, and Mr. Dleiow pleaded guilty to three offences, including uttering a threat. He received a conditional discharge, which does not result in a conviction. With no allegation he was a national-security risk, he could not be deported, the Supreme Court said.

In both cases, the federal Ministry of Immigration argued that Canadian law allows for the deportation of foreign nationals and permanent residents who have put public safety at risk, or might in the future. Mr. Mason’s lawyer, Erica Olmstead, responded that the cases opened up the seemingly limitless possibility of deportation for any act of violence – for instance, of young people in schoolyard fights or adults in domestic altercations, even where no charges were laid or a person was acquitted.

Under Canadian law, foreign nationals – those who are neither citizens nor permanent residents – may be deported if they are convicted of a crime. Permanent residents may be deported if they are convicted of a crime and sentenced to six months or more, or if the conviction carries a maximum sentence of 10 years or more. And both groups may be deported if they are considered a risk to national security, for engaging in terrorism, war crimes or organized crime – even if they have not been convicted in Canada.

But the government argued for a broader interpretation of federal law, citing a section of the Immigration and Refugee Protection Act that says non-citizens are “inadmissible to Canada on security grounds for engaging in acts of violence that would or might endanger the lives or safety of persons in Canada.” The law had been on the books since 1976 but Ms. Olmstead said this was just the second case in which the federal government sought to use it in this way. (It lost the first one.)

The Mason case had a long, complicated history, beginning at an immigration tribunal and working its way up to the Federal Court of Appeal, which found deportation to be a reasonable interpretation of the law.

But the Supreme Court affirmed an important principle to guide courts that are asked to review any of the thousands of tribunal decisions that are made each year, on everything from landlord and tenant issues to international trade to labour disputes.

“Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes,” Justice Mahmud Jamal wrote for seven of the judges.

And with the stakes high for Mr. Mason, the appeal division of the Immigration and Refugee Board had not shown it truly listened to his arguments, Justice Jamal wrote. (The appeal division had overturned a tribunal decision rejecting deportation.)

Mr. Mason’s lawyers had argued the federal position could lead to absurd consequences, such as deporting young people under 18 who are protected from deportation for most criminal convictions, under another section of the law. Parliament should be deemed not to have intended such absurdities, the lawyers argued, and the court agreed.

The Supreme Court also said the government’s interpretation would create the possibility of deporting foreign nationals to places where they would face persecution – in violation of Canada’s obligations under international law. It all pointed “overwhelmingly to only one reasonable interpretation,” Justice Jamal wrote – that the section of the act requires that an individual be deemed a risk to national security.

Marc Miller, Minister of Immigration, Refugees and Citizenship, declined to comment until he has had time to review the ruling, a spokesperson said.

Ms. Olmstead, a lawyer for Mr. Mason, said if the Federal Court of Appeal ruling had stood, many people might have become subject to deportation: “Anyone with a discharge, anyone with a peace bond, people acquitted of crimes where there was some allegation based on the police report.”

Kevin Westell, a lawyer for an intervenor, the Criminal Lawyers’ Association, said the group is “drawing a great sigh of relief that common sense and the logical construction of this legislation has been upheld.”

The ruling was applauded by the United Nations Refugee Agency, whose representative in Canada, Rema Jamous Imseis, said the group “appreciates the court’s acknowledgment that Canada must respect its obligations under international law, including the right of refugees and asylum-seekers not to be returned to a country where they would face persecution.”