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Mason

By October 11, 2023No Comments
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Commentary on Mason 1
 
The Supreme Court’s decision in Mason takes the interpretation of the Immigration and Refugee Protection Act in a new direction. Previous jurisprudence had emphasized the importance of public safety and national security as paramount concerns in the interpretation of IRPA and, in particular in relation to the Act’s inadmissibility provisions. Inadmissibility on security grounds and due to membership, was, according to this jurisprudence to be given a broad and unrestricted meaning because the over-inclusivity that may flow from the capturing of benign members  (of an impugned organization) is cured by the operation of the Act’s ministerial relief provisions. 2 By contrast, Mason holds that any safety valves that might relieve a person from a finding of inadmissibility are not relevant to the interpretation of the scope of an inadmissibility provision. Mason also instructs us that the potential collateral consequences – including the loss of access to Convention rights – that might flow from a broad interpretation of an IRPA admissibility provision, are important considerations when assessing a provision’s scope. The Mason court emphasizes that, where possible, IRPA’s provisions must be interpreted in a manner consistent with Canada’s international obligations.
 
What were the facts in Mason:
Mr. Mason is a foreign national. He is married and was sponsored by his wife, a Canadian citizen. He has two Canadian daughters. In 2012, he was involved in an argument. He was attacked and struck in the head with a beer bottle. He responded by drawing his gun. He shot the assailant and another man. He was charged with attempted murder, but the charges were stayed due to unreasonable delay. Accordingly, there was no conviction in Canada and, as such, he could not be found inadmissible for serious criminality under section s. 36 (1) of IRPA – which requires the minister to point to a (beyond-reasonable-doubt) “conviction” (and not merely evidence of criminal ‘acts’) to obtain a deportation order based on an allegation of (domestic) criminality. As Mr. Mason was never convicted in relation to the 2012 events, the Minister attempted to resort to IRPA s. 34(1)(e), which does not require evidence of a “conviction”. That section provides that a “[person] is inadmissible on security grounds for . . .  engaging in acts of violence that would or might endanger the lives or safety of persons in Canada.[]”
The issue
As Mr. Mason had not been convicted of a crime in Canada, and had not committed an offense or a criminal act outside of Canada, he could not be found inadmissible under the provisions dealing with criminality. The Minister sought to apply the provision dealing with security and argued that Mr. Mason was inadmissible under section 34 (1) (e) for engaging in acts of violence that would endanger the lives or safety of people in Canada.
The issue before the Court concerned the proper scope of s. 34 (1) (e): can a person be captured by the provision if there was no evidence that they pose a danger to the security of Canada?
Decisions below:
1 Mason v MCI 2023 SCC 21
2 See for example Canada v Singh 1998 FCJ 1147 at par 52; Re Suresh 1997 FCJ 1537 “ 22  Membership cannot and should not be narrowly interpreted when it involves the issue of Canada’s national security. Membership also does not only refer to persons who have engaged or who might engage in terrorist activities.”
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These are summarized in the decision of the Supreme Court in Mason.
A. Immigration Division Decision , 2018 CanLII 575223
The ID ruled that a “security groun[d]” under s. 34(1) means a threat to the security of Canada or another country, and that the act of violence in question must have some connection to a threat to the security of Canada. In the ID’s view, Mr. Mason’s alleged conduct involved “mere criminal offences”, which “although very serious”, lacked “any element that would elevate them to security grounds”, and thus s. 34(1)(e) could not apply (para. 24). 4
B. Immigration Appeal Division Decision 2019 CanLII 551715
On appeal, the IAD concluded that inadmissibility under s. 34(1)(e) does not require a link to national security or the security of Canada. In the IAD’s view, “security” under s. 34(1)(e) relates to “security in a broader sense”, namely, to ensure “that individual Canadians are secure from acts of violence that would or might endanger their lives or safety” (para. 37). 6
  1.  Decision of the Federal Court: 2019 FC 1251  
Mr. Mason sought judicial review of the IAD. In a pre-Vavilov decision, the Federal Court concluded that “the IAD’s decision upset the carefully crafted structure of the IRPA by including under s. 34(1)(e) a vast range of conduct that “would or might endanger the lives or safety of persons in Canada”. This would thwart Parliament’s intent by bringing under the most serious category of inadmissibility conduct falling below the thresholds for less serious categories of inadmissibility, and it would discard Parliament’s choice under s. 36 of the IRPA to require a conviction when criminal conduct was committed in Canada.” 7
Decision of the Federal Court of Appeal: 2021 FCA 156
 
On appeal, the FCA  “rejected Mr. Mason’s argument that reading s. 34(1)(e) without a nexus to national security is inconsistent with the broader statutory context. The court held that the IAD reasonably concluded that the conduct captured by s. 34(1)(e), which speaks of the danger posed to the “lives or safety” of persons in Canada, is only a small subset of what would be considered serious criminality under s. 36 of the IRPA. Sections 34 and 36 address two different matters — conduct and convictions, respectively (para. 55). Section 36 is much broader, and applies to much non-violent criminal behaviour; s. 34(1)(e) is narrower, and applies only to acts of violence. The court noted that when the IAD said that s. 34(1)(e) is not absurdly broad because the conduct captured by the provision is “narrowly defined”, this could only mean that it interpreted “safety” in s. 34(1)(e) as “something approaching the level of a threat to life, not just minor harm” (para. 57). The court stated that although the IAD did not address certain contextual arguments,
3 Mason v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 57522 (CA IRB).
4 Mason par 19
5 Mason v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 55171 (CA IRB)
6 Mason par 20
7 Mason par 24
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this failure was not a fundamental gap and did not cause the court to lose confidence in its outcome so as to make its decision unreasonable”  8
The issues at the Supreme Court of Canada:
  • 1. Does the fact that the Federal Court of Appeal only hears an appeal of a certified question alter the standard of review. Answer No. Standard of review is reasonableness.
  • 2. Was the IAD’s interpretation of section 34 reasonable? Does section 34 (1) (e) require a nexus with national security? The IAD’s interpretation was not reasonable. Section 34 requires a nexus to national security.
The Court first explained the proper application of the principles of statutory interpretation to a reasonableness review of the decision of the IAD.
Relevant factors to consider when assessing the reasonableness of the decision interpreting a statute.
  • a. A reasonable decision is one in which the decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties ( Mason 74 citing to Vavilov 127)  The decision maker’s reasons are the mechanism whereby the decision maker shows they have listened. The decision maker’s failure to grapple with the key issues or central arguments raised by the party calls into doubt the reasonableness of the decision.  9
  • b. Decision makers show be concerned about consistency in decisions even if they are not bound by prior decisions. The reasons must justify departure from previous decisions 10
  • c. The decision maker must also take into account the consequences on the person. If the decision has harsh results then the reasons must show that the decision maker has taken into account those consequences and that the consequences are justified in fact and law.11  This point is reiterated at par 81 where the Court states:
[81] In reviewing the IAD’s reasons, I recall this Court’s instruction in Vavilov that a reviewing court should conduct reasonableness review mindful of the impact of the decision on the affected individual. The principle of “responsive justification” means that “[w]here the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes” (para. 133). Here, the interpretation of s. 34(1)(e) will affect whether two individuals — one of whom has not been convicted of a criminal offence — could be deported from Canada. As this Court has noted, individuals facing deportation may experience “any number of serious life-changing consequences”, including dislocation or permanent separation
8 Mason par 30
9 Mason par 74
10 Mason par 75
11 Mason par 76
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from their family (R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 72, per Wagner J. (as he then was), dissenting). The IAD’s reasons must reflect these stakes.
Application by the Supreme Court of these principles to the decision of the IAD in Mason.
  • a. The IAD failed to address two significant submissions on statutory context. First, before the IAD, the appellant submitted that s. 34 (1) (e) requires a nexus to national security because a comparison of the relief provisions applicable to s. 34 (i.e., the more onerous s. 42.1 ‘ministerial relief’) and s. 36 (i.e., the less onerous s. 25 H&C relief) reveals that Parliament intended that s. 34 (1) (e) should capture only “grave forms of inadmissibility” He emphasized that, should the IAD’s approach to s. 34 (1) (e) be accepted, his lack of a conviction would cause  him a harsher consequence –in terms of the scope of available relief – as compared to what would have resulted had he actually been convicted – and the Minister proceed under s. 36(1).  The Court found that the IAD’s failed to engage with this argument, and that the failure of engagement rendered the decision unreasonable.12
  • b. Second, Mr. Mason argued that IRPA s. 113’s differential treatment of PRRA applicants captured by s. 34(1)(e) – as compared to those captured by s. 36(1) – further indicates that Parliament intended s. 34(1)(e) to require a nexus to national security. When the former is in play, s. 112 the Minister to assess whether the PRRA applicant is a “danger to the security of Canada”, whereas when the later is in play, the  assessment pertains of whether the applicant is a “danger to the public in Canada”. This statutory language, Mr. Mason argued before the IAD, supports the conclusion that s 34(1)(e) must entail a nexus to national security. Rejecting the FCA’s finding that the IAD implicitly considered these arguments,  the SCC held that the IAD failure to engage with these arguments rendered its decision unreasonable (see par 92-95). 13
  • a. The Supreme Court also found that the IAD failed to consider the potentially broad consequences of interpreting 34 (1) (e) without a nexus to national security because the provision would encompass a broad variety of conduct without the requirement for a conviction, and this would be inconsistent with the grave consequences of this inadmissibility. Inadmissibility requires a much lower burden of proof then the criminal reasonable doubt and as a result the IAD interpretation would extend too broad a net. The SCC disagreed with the Federal Court of Appeal and held that the IAD did not address this argument 14
  • b. Moreover, the Supreme Court found that the IAD also failed to consider that, by  interpreting section 34 as not requiring a nexus to national security,  the result would be to undermine the function of the s. 36 (3) ‘carve-out’ (from s. 36(1) inadmissibility) –  which exempts from criminal inadmissibility those convicted as young offenders. As s. 34 does not have a similar age limitation, a broad interpretation of “security” under s. 34 (1) would enable to the Minister to obtain deportation orders against youthful offenders – despite Parliament’s apparent intention that youthful offenders be exempted from the
12 Mason par 86-92
13 Mason par 96-97
14 Mason par 98-101
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  • consequences of criminal inadmissibility. TCourt held that the IAD and the Federal Court of Appeal failed to consider this argument. 15
  • c. Moreover, the Supreme Court found that the IAD erred in is construal of s. 34(1)(e) because it failed to consider the consequences to Canada’s international law commitments, when determining the proper scope of s. 34 (1) (e). Although this issue was not raised before the IAD, the SCC nevertheless found that the FCA erred by not considering it. The IAD was obliged to interpret IRPA in a manner that is consistent with international law and Canada’s international commitments, as required by s. 3 of the IRPA. On this point the Court observes that Vavilov emphasizes that international law may  place an important constraint on decision makers, and that it is a principle of statutory construction that  Parliaments intends that legislation should operate in conformity with Canada’s international legal commitments. Canada has ratified the UN Refugee Convention and Protocol. The provisions of IRPA also expressly state it shall be interpreted in a manner consistent with Canada’s international obligations. Accordingly, absent a clear legislative intent to the contrary, the Refugee Convention is determinative of how IRPA should by construed and applied ( Par 104-106).
The Centerpiece of the refugee convention is the protection against refoulement, which is a norm of customary international law ( par 108). However, the IAD’s interpretation of section 34 (1) (e) is inconsistent with the non-refoulement principle, because it would render some individuals legally vulnerable to  refoulement, on the ground that they are a danger to the public, in the absence of a conviction. This is anathema to the UN Convention, which makes a conviction  a condition precedent for refoulement based on danger to the public.
Importantly, the Court held that, although there are ‘safety valves’ under IRPA, “none of these discretionary exemptions detract from the concern that the IAD’s interpretation of s. 34(1)(e) would, as a general rule, allow for a removal order without protection from refoulement, contrary to Article 33(1) of the Refugee Convention.” 16
  • d. Finally, the Court held that it did not matter that the appellants did not seek refugee protection:
[115]                     That neither Mr. Mason nor Mr. Dleiow is a refugee claimant does not detract from this conclusion. The Refugee Convention imposes an important legal constraint on the interpretation of s. 34(1)(e) generally, irrespective of whether the specific foreign national subject to deportation is a refugee claimant.
The Significance of Mason:
  • 1. The Court reaffirms the requirement that the reasons must reflect consideration of the submissions of the person concerned.
15 Mason par 102-103
16 Par 109-11
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  • 2. The Court reaffirms that in rendering its decision the decision maker must take into account the impact of the decision on the person concerned as an important consideration when interpreting a statute.
  • 3. The Court also found that the in interpreting a provision the Courts must take into account the fact that a specific interpretation may be overly broad.17
  • 4. The Court reaffirms that the decision maker must take into account the constraints of international law when rendering its decision or interpreting IRPA.  When faced with multiple plausible interpretations of a legislative provision, the decision maker is required to prefer an interpretation that is consistent with international law,  as Parlimaent is presumed to intend that its legislation comply with international law.
  • 5. The Court holds that the principle of non refoulement is a principle of customary international law.
  • 6. The Court reaffirms the requirement that inadmissibility provisions be interpreted in a manner consistent with international law – including the Refugee Convention, and that anyone who is captured by the law should benefit from said interpretation, irrespective of whether they are making a refugee claim. Essentially the Court is saying that there is one section 34 (1) for all persons who engage IRPA regardless of whether or not they have sought refugee protection.
  • 7. The Court affirms that the fact that there are discretionary safety valves is irrelevant to the interpretation of section 34 and does not detract from the fact that the IAD’s interpretation would be inconsistent with the protection against refoulement and as such was not relevant to the interpretation of the provision.
  • 8. The Court affirms that there may be times where there is only one reasonable interpretation of a provision and that in this case the only reasonable interpretation is one which requires a nexus to national security.
Impact of Mason on previous jurisprudence:
MASON RELEVANT TO THE UNDERSTANDING OF MEMBERSHIP IN SECTION 34
The Federal Court has consistently held that the notion of membership must be given a broad interpretation. In Singh, 1998 FCJ 1147 the Court noted:
¶52 The provisions deal with subversion and terrorism. The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not therefore easily identifiable…
The Federal Court of Appeal has also emphasized the paramountcy of security in the interpretation of this provision and this must be reconsidered as a result of the Court’s decision in Mason. 18
Mason instructs us that international law imposes constraints on the interpretation of IRPA – at lease where multiple plausible interpretations are available – and that the international human
17 Mason par 98-101
18 See for example Sittampalam v MCI 2006 FCA 326: “36  In my view, the same “unrestricted and broad” interpretation should be given to the word “organization” as it is used in paragraph 37(1)(a). The IRPA signifies an intention, above all, to prioritize the security of Canadians. This was confirmed by the Supreme Court of Canada in the decision of Medovarski v. Canada (Minister of Citizenship and Immigration [2005] 2 S.C.R. 539”
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rights treaties to which Canada is a party are a trigger to the interpretive presumption of conformity with international law. The Court’s direction that IRPA must be interpreted consistent with international obligations is important because a person inadmissible under s. 34 loses the right to a section 96 assessment under the Refugee Convention. The burden of proof of personal risk under s 97(1) requires a higher standard than the test of ‘a serious possibility’ under s 96.” The requirement of conformity is reaffirmed in IRPA as a result of the inclusion of section 3 (3) (f) which requires IRPA to be interpreted in a manner consistent with international law. 19 Mason considers Canada’s obligation to protect against refoulement as a crucial factor in the interpretation of the provision, and concludes that an interpretation which ensure compliance with this principle must be preferred over the one which does not. 2021
The Court’s direction that IRPA must be interpreted in a manner consistent with our international obligations. A person found inadmissible under section 34 (1) loses the right to a hearing before the RPD; 22 and their claim for protection will only be considered in relation to risks under section 97—torture, risk to life, and risk of cruel and unusual treatment. 23 As a result, a person found inadmissible under section 34 loses the right to protection against refoulement because the competent authorities in Canada will not assess whether or not they are at risk of persecution as set out in section 96 of IRPA.  Given this consequence, section 34 must be interpreted in a restrictive manner so that only persons who pose a real danger to the security of Canada should be subjected to refoulement.  This suggests that the interpretation of ‘membership’, under IRPA inadmissibility provisions, should not be broad and unrestricted but, rather, should be constrained so as to ensure that only those who truly pose a danger to the security of Canada are captured – and, by extension, are stripped of their rights under s. 96.
Mason and that the impact of the application of the provision on the person concerned, brings into question whether it is reasonable to continue to apply a broad definition of membership. How does an overly broad definition of membership enhance our national security?  In the past the Federal Court and Federal Court of Appeal relied on the availability of ministerial relief to justify an expansive interpretation of ‘membership’. 24 But given the dicta in Mason, which instructs that safety valves are not to be taken into account when interpreting the provision, this argument is no longer tenable.
Mason also instructs us that when interpreting the provision one must consider whether a specific interpretation is overly broad.25  A broad and unrestricted interpretation of the membership sections
19 See Mason par 104-106
20 See Mason par 107
21 Mason concludes [117]  In any event, the role of the Refugee Convention in constraining the interpretation of the IRPA is a question of law, one that Parliament by s. 3(3)(f) has expressly directed a court or administrative decision maker to consider. The IAD’s failure to consider this issue did not involve the omission of a “minor aspect of the interpretive context” (Vavilov, at para. 122). Rather, it involved the omission of the principle of non-refoulement — “the cornerstone of the international refugee protection regime”, and a critical legal constraint on interpretation of the IRPA, one that Parliament has decreed must be considered in construing and applying the IRPA. This crucial omission made the IAD’s decision unreasonable.
22 See IRPA sec 101
23 See IRPA s. 112 (3)
24 See Najafi v MCI 2014 FCA 262  “80  Obviously, when I state that Parliament intended for the provision to be applied broadly, I am referring to the inadmissibility stage, for, as noted by the Supreme Court of Canada in Suresh, albeit in a different context, the legislator always intended that the Minister have the ability to exempt any foreign national caught by this broad language, after considering the objectives set out in subsection 34(2). This is done by way of an application.”
25 Mason par 98-101
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is inconsistent with this direction. Mason also indicates that in interpreting the provision the Court must also consider the consequences on the persons affected by it. A finding of inadmissibility under section 34 has, as the Court noted in Mason, grave consequences.  This too suggests that a broad and unrestricted approach to membership is not the correct approach.
How then should membership be construed given the dicta in Mason? Certainly it would be unreasonable to constrain it to those who have taken out formal membership in the organization because many clandestine organizations do not have formal membership and, in any event, ascertaining whether or not a person is a formal member would be a difficult if not impossible task.  The definition of membership should take into account the need to protect Canada against those who would pose a threat to our security while not casting an overly broad net.
Consider for example the Federal Court of Appeal’s decision in Poshteh. 26  The case involved a young man who distributed pamphlets for the MEK, an organization that had engaged in acts of terrorism. He distributed pamphlets for about two years, ceasing just before he was arrested. At the time he ceased his activities he was a minor, just under 18 years of age.  The Court held that the provision should be interpreted broadly and relied on the existence of the ministerial relief provisions to justify that broad interpretation. 27 The Court rejected Mr. Poshteh’s argument that a broad interpretation should be rejected in favour of one which considered the degree of integration of the person with the organization. 28 Mason will require a reconsideration of that conclusion.
Meaning of “subversion” must be reconsidered as a result of Mason:
In Najafi, 2014 FCA 262, the Federal Court of Appeal rejects the notion that the definition of “subversion by force of any government” under s. 34 should accommodate the right of oppressed peoples to self-determination. The Court of Appeal acknowledges that, under the modern approach to statutory construction, the presumption that Parliament intends that a law should conform with Canada’s international obligations is a valid canon of statutory construction. However, the court nevertheless situates the principle as merely one among many canons of statutory construction to which a decision-maker may turn when interpreting a statutory provision:
[61]      International law may be an important part of the legal context, but it is only one of many factors and presumptions that are considered in applying this modern approach. In my view, relevant international law, like other relevant elements of the legal context, should ideally be taken into account before concluding whether or not a text is clear or ambiguous. I note that this is also the view expressed in Construction of Statutes, 2008, at page 547, but as mentioned by the author, many courts still consider ambiguity a prerequisite.
[62]      That said, the modern approach is contextual. There is therefore no single way to apply it. Indeed, there may be cases where the other factors of the relevant context are so
26 200% FCA 85
27 Poshteh par 28-30
28 The Court noted: “31  I am not persuaded that Mr. Poshteh’s significant integration test would achieve the consistency that he says is presently lacking in Immigration Division decisions. A significant integration test would still require an assessment of the facts and a judgment as to whether the degree of integration in any particular case was sufficient to constitute the individual a member. More importantly, a test for membership based on significant integration would not be consistent with the broad interpretation to be given to the term “member.”
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strongly in favour of a particular interpretation that international law could only have little to no impact. In such cases, a decision maker may not be required to go through the exercise of assessing the evidence before it, particularly when what is argued is not really a direct violation of an international instrument to which Canada is a signatory, or does not involve a particularly well established rule of customary international law.29
Ultimately the Court of Appeal gives interpretative primacy to the IRPA’s s. 3(1)(h) objective of security, when assessing whether the IRB’s interpretation of s. 34(1)(b) “subversion by force of any government” is reasonable.  In Najafi the Court states:
[71]  Although the IRPA has many objectives listed in subsection 3(1), Parliament indicated an intent to prioritize security (paragraph 3(1)(h)) when it enacted paragraph 34(1)(b). Indeed, this paragraph provides specifically that a person is inadmissible on security grounds. Thus, the focus of the provision under review is on the right of the government to control its frontier and to deny entry to persons who may be a threat to its security.
However, Mason appears to recognize an elevated role for international law, when it comes to interpreting IRPA inadmissibility provisions. The Court explains that “the IAD was required by its home statute to interpret and apply the IRPA in a manner that complies with Canada’s international human rights obligations, including Canada’s non-refoulement obligation under Article 33 of the Refugee Convention”.30 In fact, the Court goes so far as to emphasize that  “the presumption of conformity with international law assumes added force when interpreting the IRPA, because Parliament has made its ‘presumed intent to conform to Canada’s international obligations explicit ‘through two provisions of the IRPA.” The Court notes that “s. 3(2)(b) of the IRPA expressly identifies one of the IRPA’s objectives as being ‘to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement’.” And it notes that that “s. 3(3)(f) of the IRPA instructs courts and administrative decision makers to construe and apply the IRPA in a manner that ‘complies with international human rights instruments to which Canada is signatory’.”31
Mason therefore raises the question of whether Court of Appeal’s holding in Najafi – i.e. that international law “ideally be taken into account” when assessing whether or not a statutory provision is unambiguous and international protection are ousted.
The Federal Court of Appeal’s conclusion that the potential overbreadth of the provision could be cured by safety valves or prosecutorial discretion is also inconsistent with Mason. 32  Najafi was found inadmissible for being a member of the KDPI, an organization which was resisting the oppression directed against the Kurds who lived in the Kurdish regions of Iran. The right to secession was recognized by the Supreme Court of Canada in the Reference Re Secession of Quebec.33  The Federal Court of Appeal held that the fact that international law recognized that the
29 Najafi v Canada, 2014 FCA 262 at paras 62-62
30 Mason at para 104.
31 Mason at para 106.
32 See Najafi v MCI 2015 4 FCR 162 at par 58-91 and Mason supra at par 106-117
33 1998 2 SCR 217 at par 113-121
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use of force may be legitimate was irrelevant to its interpretation of inadmissibility, that the legitimacy of the use of force will be considered in an application for ministerial relief, and any concerns over the overbreadth of the provision can be cured by prosecutorial discretion.34 These arguments have all been put into question by the Supreme Court’s reasoning in Mason.
Scope of Discretion to Defer and Consideration of the Rights of the Child
Section 48 of IRPA requires an officer to execute a removal order that is enforceable ‘as soon as possible’.35 The jurisprudence of the Federal Court of Appeal has interpreted this provision as acknowledging that officers arranging removal have a very limited discretion to defer removal in cases where there is evidence of a risk to life. The existence of an application on humanitarian grounds is not—absent exceptional circumstances—a reason to defer, and an officer has no obligation to review the best interests of children prior to removal. 36  Subsequently, in Lewis, the Court of Appeal indicated that, at most, an officer considering a request to defer must consider the child’s “short term best interests.” 37   In Lewis the Federal Court of Appeal rejected the argument that Canada’s international obligations under the UN Convention on the Rights of the Child required a full assessment of the best interests of children affected by the removal. The Court acknowledged that the best interests was a primary—even paramount—concern in administrative decisions, but concluded that there must be some flexibility afforded to administrative decision makes and held that recognizing a right to a full assessment of the best interests of the child was not possible as it  would unduly impede enforcement of IRPA.38 The Court noted:
34 Najafi supra 89-19
35 48 (1) A removal order is enforceable if it has come into force and is not stayed (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible.
36 See Baron v MPSEP 2009 FCA 81 par 51-58
37 Lewis v MPSEP 2017 FCA 130 ..”58  That said, the case law of the Federal Court recognizes that an enforcement officer, in appropriate cases, may be required to engage in a truncated consideration of the short term best interests of children who might be affected by their parents’ removal.
38 See Lewis supra 76  Paragraph 3(3)(f) of the IRPA sets out a rule of construction, providing that the IRPA is to be “construed and applied in a manner that complies with international human rights instruments to which Canada is signatory”. This Court and the Supreme Court of Canada have held that this provision does not import international instruments to which Canada is a signatory into domestic law, but, rather, provides a contextual foundation for interpretation and gives rise to a presumption that the legislation should be interpreted in a manner consistent with Canada’s international obligations…..77  Contrary to what the intervener asserts, the Children’s Convention does not prescribe that the best interests of the child is to be the priority consideration for all administrative decision-makers tasked with making decisions that might impact children. Rather, Article 3 of the Convention provides in relevant part that “[i]n all actions concerning children […], the best interests of the child shall be a primary consideration” [emphasis added]. Thus, Article 3 of the Children’s Convention requires the best interests of the child be a priority, but not the sole priority consideration. This is to be contrasted with the role ascribed to the best interests of the child in adoption proceedings under Article 21 of the Children’s Convention, which provides that in such proceedings the best interests of the child shall be “the paramount consideration”. 78  The United Nations Committee on the Rights of the Children recognizes the difference between these two obligations in its General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, CRC/C/GC/14 (29 May 2013), stating at paragraphs 38 and 39 as follows: In respect of adoption (art. 21), the right of best interests is further strengthened; it is not simply to be “a primary consideration” but “the paramount consideration” […]. [Emphasis in original.] However, since article 3 […] covers a wide range of situations, the Committee recognizes the need for a degree of flexibility in its application. […] 79  Section 25 of the IRPA provides the mechanism under which children’s best interests are to be fully assessed in accordance with Canada’s obligations under the Children’s Convention. In Kanthasamy the Supreme Court has detailed what this assessment entails.80  It was open to Mr. Lewis to make an application under section 25 of the IRPA at any point after his daughter was born. Had he done so, his daughter’s best interests would probably already have been fully evaluated by an H&C officer in the context of such an application. However, he neglected to make an application under section 25 of the IRPA until shortly before his scheduled removal. In my view, this does not entitle
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[76]      Paragraph 3(3)(f) of the IRPA sets out a rule of construction, providing that the IRPA is to be “construed and applied in a manner that complies with international human rights instruments to which Canada is signatory”. This Court and the Supreme Court of Canada have held that this provision does not import international instruments to which Canada is a signatory into domestic law, but, rather, provides a contextual foundation for interpretation and gives rise to a presumption that the legislation should be interpreted in a manner consistent with Canada’s international obligations: B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at paragraph 49; Okoloubu v. Canada (Minister of Citizenship and Immigration), 2008 FCA 326, [2009] 3 F.C.R. 294, 301 D.L.R. (4th) 591, at paragraphs 34–37; and de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655, 262 D.L.R. (4th) 13, at paragraphs 82–89.
It is submitted that this dicta must be reconsidered considering the Court’s direction in Mason. Mason instructs as to how international law is to be applied when interpreting a provision. Mason instructs that international law imposes “legal constraints”39 on the interpretation of an IRPA provision – a stronger principle than the mere “contextual foundation” envisaged by the Court of Appeal in Lewis. In Mason the Court was dealing with the interpretation of a provision related to national security. Despite the importance of protecting national security the Court concluded that the proper interpretation was one which ensured that Canada complied with its obligation to protect against refoulement. The Court concluded that interpreting the provision in a manner which complies with our international obligation was an important interpretative tool.  The Court noted:
[106]                     The presumption of conformity with international law assumes added force when interpreting the IRPA, because Parliament has made its “presumed intent to conform to Canada’s international obligations explicit” through two provisions of the IRPA (B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at para. 49). First, s. 3(2)(b) of the IRPA expressly identifies one of the IRPA’s objectives as being “to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement”. Indeed, this Court has described the IRPA as the “main legislative vehicle for implementing Canada’s international refugee obligations” (Németh, at para. 21). Second, s. 3(3)(f) of the IRPA instructs courts and administrative decision makers to construe and apply the IRPA in a manner that “complies with international human rights instruments to which Canada is signatory” (B010, at para. 49). This Court has stated that “[t]here can be no doubt that the Refugee Convention is such an instrument, building as it does on the right of persons to
him to forestall his removal. Were it otherwise, a large loophole would be opened in the IRPA, resulting in longer stays in Canada for those subject to lawful removal orders. In many cases, such delay is probably not in anyone’s best interests.81  The impact of the Children’s Convention on the type of assessment to be undertaken by enforcement officers was squarely addressed by this Court in Baron. There, this Court unequivocally held at paragraph 47 that the Children’s Convention does not mandate that a full-blown best interests of the child analysis be undertaken by an enforcement officer or that removal be delayed due to an untimely H&C application. Rather, in adopting the statements in Simoes, this Court in Baron recognized that it is only where a timely H&C application is still pending due to a backlog in processing that a deferral may be warranted.82 Thus, neither Kanthasamy nor the Children’s Convention required the Enforcement Officer in this case to undertake a full-blown assessment of the best interests of Mr. Lewis’ daughter or to grant the requested deferral until Mr. Lewis’ last minute H&C application was decided by a ministerial delegate. Rather, the Enforcement Officer was only required to consider the short-term best interests of the child.
39 Mason at paras 115-121.