Khosa v.canada


Canada (Citizenship and Immigration) v. Khosa, [2009] 1 SCR 339, 2009 SCC 12 (CanLII)

• 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 (in a street race in Vancouver) and received a conditional sentence of two years less a day. A valid removal order was issued to return him to India.
• IAD rejected H&C appeal (based on Ribic factors, described in Chieu), but FCA found that the decision was unreasonable because IAD didn’t properly consider his rehabilitation and also seemed to have a fixation with “street racing”
• SCC says FCA did not apply the reasonableness standard properly – main issue of factual disagreement between majority and dissent at the IAD was over Khosa’s expression of remorse – this is something better left to the IAD and not for the courts
• There is debate in this case between the majority and the concurring reasons of Rothstein J with respect to the interpretation of 18.1(4) of the Federal Courts Act
• Majority holds that these are “grounds of review” and not “standards of review”
• Moreover,
[50]…Most jurisdictions in Canada seem to favour a legislative approach that explicitly identifies the grounds for review but not the standard of review. In other provinces, some laws specify “patent unreasonableness”. In few of these statutes, however, is the content of the specified standard of review defined, leading to the inference that the legislatures left the content to be supplied by the common law.
[51] As stated at the outset, a legislature has the power to specify a standard of review, as held in Owen, if it manifests a clear intention to do so. However, where the legislative language permits, the courts (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 on the Dunsmuir teaching of restraint in judicial intervention in administrative matters (as well as other factors such as an applicant’s delay, failure to exhaust adequate alternate remedies, mootness, prematurity, bad faith and so forth).

Dunsmuir establishes that there are now only two standards of review: correctness and reasonableness. No authority was cited suggesting that a “correctness” standard of review is appropriate for IAD decisions under s. 67(1)(c) of the IRPA, and the relevant factors in a standard of review inquiry point to a reasonableness standard. These factors include: (1) the presence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation — the IAD determines a wide range of appeals under the IRPA and its decisions are reviewable only if the Federal Court grants leave to commence judicial review; (3) the nature of the question at issue before the IAD — Parliament has provided in s. 67(1)(c) a power to grant exceptional relief and this provision calls for a fact dependent and policy driven assessment by the IAD itself; and (4) the expertise of the IAD dealing with immigration policy. These factors must be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case. [53 57]