Saturday, March 7, 2009


The Supreme Court of Canada yesterday restored the deportation against a street racer found guilty of manslaughter, who had argued that he should be allowed to remain in Canada based on "humanitarian and compassionate" reasons. His apparently "light" criminal conviction sparked outrage in British Columbia at the time.

Here is a summary of the decision. For those interested in the full text, it can be found at:

Canada (Citizenship and Immigration) v. Khosa

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

on appeal from the federal court of appeal

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 matters of remedy depending on the court’s appreciation of the respective roles of the courts and the administration as well as the circumstances of each case. The discretion must be exercised judicially, but the appropriate judicial basis for its exercise includes the general principles dealt with in Dunsmuir. [36]

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. [53‑54][56‑57]

Where, as here, the reasonableness standard applies, it requires deference. Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes. In this case, the question whether K had established “sufficient humanitarian and compassionate considerations” to warrant relief from his removal order was a decision which Parliament confided to the IAD, not to the courts. [4][59]

The IAD reasons, both the majority and dissent, disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome. At the factual level, the IAD divided in large part over differing interpretations of K’s expression of remorse. This is the sort of factual dispute which should be resolved by the IAD not the courts. The majority considered each of the Ribic factors, reviewed the evidence and decided that, in the circumstances of this case, discretionary relief should be refused. While the findings of the criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and second of the Ribic factors), were properly noted, the IAD had a mandate different from that of the criminal courts. The issue before it was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other relevant factors, they warranted special discretionary relief from a valid removal order. The IAD was required to reach its own conclusions based on its own appreciation of the evidence and it did so. [64‑66]

In light of the deference properly owed to the IAD under s. 67(1)(c) of the IRPA there was no proper basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case. It cannot be said that this decision fell outside the range of reasonable outcomes. [60][67]

Per Rothstein J.: Where a legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge. With respect to s. 18.1(4) of the Federal Courts Act, the language of para. (d) makes clear that findings of fact are to be reviewed on a highly deferential standard. Courts are only to interfere with a decision based on erroneous findings of fact where the federal board, commission or other tribunal’s factual finding was “made in a perverse or capricious manner or without regard for the material before it”. By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4). Where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language, as it has in para. (d) regarding facts. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context. [70] [72] [113] [117]

While recourse to the common law is appropriate where Parliament has employed common law terms or principles without sufficiently defining them, it is not appropriate where the legislative scheme or provisions expressly or implicitly ousts the relevant common law analysis as is the case with s. 18.1(4) of the Federal Courts Act. Courts must give effect to the legislature’s words and cannot superimpose on them a duplicative common law analysis. The Dunsmuir standard of review should be confined to cases in which there is a strong privative clause. Excepting such cases, it does not apply to s. 18.1(4). The application of Dunsmuir outside the strong privative clause context marks a departure from the conceptual and jurisprudential origins of the standard of review analysis. [70] [74] [106] [136]

The deference approach emerged as a means of reconciling Parliament’s intent to immunize certain administrative decisions from review with the supervisory role of courts in a rule of law system. The creation of expert administrative decision makers evidenced a legislative intent to displace or bypass the courts as primary adjudicators in a number of areas, but it was only with the enactment of privative clauses, which marked the area of tribunal expertise that the legislature was satisfied warranted deference, that a legislature indicated an intent to oust, or at the very least restrict, the court’s review role. Whereas tribunal expertise was a compelling rationale for imposing a privative clause, it was not a free‑standing basis for deference. The approach of judicially imputing expertise which followed, even on questions of law, was a departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the legislature’s recognition of relative tribunal expertise. [79][82‑84][87]

There is no dispute that reviewing courts, whether in the appellate or judicial review contexts, should show deference to lower courts and administrative decision makers on questions of fact and on questions involving mixed fact and law, where a legal issue cannot be extricated from a factual or policy finding. However, where a legal issue can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause. It is not for the court to impute tribunal expertise on legal questions absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed. Recognizing expertise as a free‑standing basis for deference on questions that reviewing courts are normally considered to be expert on departs from the search for legislative intent that governs this area. [89] [90] [91] [93]

Concerns regarding the rigidity of the legislated standards are misplaced. A review of the Federal Courts Act makes clear that the focus of the analysis should be on the nature of the question under review and not on the type of administrative decision maker. Even given this legislative focus on the nature of question under review, not all administrative decision makers will be subject to the same standards of review. Where a decision maker’s enabling statute purports to preclude judicial review on some or all questions through a privative clause, deference will apply and a Dunsmuir standard of review analysis will be conducted. [109‑110]

Section 18.1(4) confers on the Federal Courts the discretion to grant or deny relief in judicial review. The remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the review itself. The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies which is wholly distinct from the common law of standard of review analysis. Reliance upon this discretion contained in s. 18.1(4) to support the view that it opens the door to the Dunsmuir standard of review analysis is inappropriate. [131] [135] [136]

The IAD’s decision not to grant relief in this case should be upheld. The application of the Ribic factors to the case before it and its exercise of discretion is fact‑based. The IAD’s factual findings were not perverse or capricious and were not made without regard to the evidence. [137]

Per Deschamps J.: There is agreement with Rothstein J. that since s. 18.1(4) of the Federal Courts Act sets legislated standards of review, those standards oust the common law. [138]

Per Fish J. (dissenting): The standard of review applicable is "reasonableness", and the IAD’s decision does not survive judicial scrutiny under that standard. The IAD’s task was to look to "all the circumstances of the case" in order to determine whether "sufficient humanitarian and compassionate considerations" existed to warrant relief from a removal order. The IAD placed the greatest weight on three factors: K’s remorse, rehabilitation, and likelihood of reoffence. Despite abundant evidence that K was extremely unlikely to reoffend and had taken responsibility for his actions, the IAD focussed on a single fact — K’s denial that he was “street racing” — and based its refusal to grant relief largely on that fact alone. While K’s denial may well evidence some “lack of insight”, it cannot be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence. The IAD’s cursory treatment of the sentencing judge’s favourable findings on remorse and the risk of recidivism are particularly troubling. While a criminal court’s findings are not necessarily binding upon an administrative tribunal with a distinct statutory purpose and a different evidentiary record, it was incumbent upon the IAD to consider those findings and to explain the basis of its disagreement with the sentencing judge’s decision. K’s denial of street racing is, at best, of little probative significance in determining his remorse, rehabilitation and likelihood of reoffence. The IAD’s conclusion that there was "insufficient evidence" upon which a determination could be made that K does not represent a risk to the public is not only incorrect, but unreasonable. Decisions of the IAD are entitled to deference, but deference ends where unreasonableness begins. [139‑40] [145] [147] [149‑151] [153‑154] [160]


Ottawa urged to review immigration board cases
Arab group's chief accepted 100% of refugees from Middle East

John Ivison, National Post
Published: Saturday, March 07, 2009

The government is being urged to re-examine all refugee cases heard by Khaled Mouammar, the current president of the Canadian Arab Federation, following the revelation that his acceptance rates were nearly twice the national average during a decade-long stint on the Immigration and Refugee Board.

Mr. Mouammar, an outspoken supporter of Hamas and Hezbollah, recorded an acceptance rate of 100% when it came to refugees from North Africa and the Middle East during his time with the IRB between 1995 and 2005, according to statistics obtained by the National Post. Although cases from the Middle East represented only a tiny fraction of his overall caseload, the 68-year-old orthodox Christian, who was born in Palestine, also accepted each claim he heard against Israel during the period, while the rest of the IRB accepted just 10% of Israel claims.

"I would like to see some close scrutiny of who this fellow accepted because his numbers are off the radar screen, even in comparison

to the generally questionable record of the IRB. Obviously no one was monitoring his performance because he was there for 10 years," said Martin Collacott, a former diplomat who follows immigration and refugee issues for the Fraser Institute.

Alykhan Velshi, spokesman for Jason Kenney, the Minister of Immigration, said the government acknowledges those concerns.

"Without knowing the full details of the individual cases, I can't comment beyond saying that the numbers speak for themselves," Mr. Velshi said.

"I think it's fair for Canadians to ask why Mouammar's acceptance rate was so much higher than the IRB average for the same countries, as well as whether he was letting people in who he shouldn't have."

When contacted at home, Mr. Mouammar referred all questions to the IRB. "I have nothing to add to that," he said. A spokesperson for the IRB said the board did not comment on the performance of past or current members. "However, statistics on individual acceptance rates cannot be used to draw conclusions or inferences."

Mr. Mouammar has found himself in hot water in recent months because of his support for Hamas and Hezbollah. The CAF advocates both be taken off a list of banned organizations because they are "legitimate political parties," while it considers Israel a genocidal regime, guilty of "war crimes."

Mr. Mouammar also hit the headlines for calling Jason Kenney, the Minister of Immigration, a "professional whore" over his support of Israel, a move that prompted Mr. Kenney to say he intends to review the CAF's public funding.

The Post reported this week that Mr. Mouammar spent much of the late 1990s and early 2000s sitting on the refugee protection division of the IRB. He was appointed when Sergio Marchi was the Liberal immigration minister in Jean Chretien's first term in 1994 and reappointed on four successive occasions.

Sources have forwarded statistics on the number of cases he handled during that period and the number of refugees that were admitted to Canada as a result.

In his first few years with the IRB, the norm was for two or three members to sit on a panel and hear refugee cases. In those years, Mr. Mouammar heard 912 cases, recording an acceptance rate of 50%, compared to an IRB average of 30%.

One person who heard cases alongside Mr. Mouammar on the refugee board said that when he presided over a case, he routinely accepted claims, and it was only when the other member presided that he would agree to deny claimants.

After the IRB streamlined the hearing process to one member, Mr. Mouammar's acceptance rate rose dramatically. Of the 1,092 cases he heard on his own, he accepted 88%, compared to a 49% average for the rest of the IRB. When it came to cases from Algeria, Iraq, Israel, Morocco and Tunisia, that number rose to 100%.

"My conclusion is that, statistically, you definitely wanted him in the room with you if you were from Algeria or Iraq, or if you were making a claim against Israel," said immigration policy analyst and lawyer Richard Kurland.

Mr. Collacott noted that Canada accepts three times as many refugees as most other countries.

Thursday, March 5, 2009


Failed refugee’s alleged crimes raises questions

Kathryn Blaze Carlson, National Post
Published: Wednesday, March 04, 2009

From a fake passport, to a stolen pair of $160,000 jewel-encrusted slippers, to alleged credit card fraud and jail time, Filip Djukic's life in Toronto sounds far from typical. But then, Mr. Djukic is not a typical Canadian. In fact, Mr. Djukic is not Canadian at all.

That the failed refugee claimant was able to remain in the country and allegedly be involved in two of Toronto's high-profile crimes has raised questions about some troubling loopholes in Canada's refugee system.

Mr. Djukic, 38, of Serbia and Montenegro, was arrested in a recent case that involved the theft of credit and debit card information of more than 215 customers at a high-end spa. He was previously arrested three years ago for allegedly stealing a $160,000 pair of jewel-encrusted slippers from Toronto's Bata Shoe Museum.

Police investigating this latest case involving the spa say that Canada's border agency has launched its own investigation into how Mr. Djukic was able to buy himself enough time in the country to allegedly commit these crimes.

"The Canada Border Services Agency is actively looking into the status of Mr. Djukic," said Det. Const. Todd Hall, who worked on the Yorkville spa case. "They're going to wait until the outcome of the charges to complete their own investigation," he said, adding that Mr. Djukic is now in jail pending a bail hearing in Toronto this morning.

Mr. Djukic entered Canada on March 16, 2005, crossing the border with a fake passport. After being denied refugee status by the Immigration and Refugee Board (IRB) on Nov. 4, 2005, Mr. Djukic did what about 7,000 failed claimants do every year in this country: he sought to overturn the decision. Mr. Djukic's case went before the Federal Court of Canada, which in most cases puts on hold an imminent removal order.

"Once your claim is denied, that's when the game starts," said James Bissett, a retired ambassador and former head of the Canadian Immigration Service. "It's a totally dysfunctional system in desperate need of reform, but no political party wants to touch the issue of refugee protection."

Mr. Djukic's case before the federal court was dismissed before it even reached judicial review. Court documents show his appeal was denied on Feb. 14, 2006 - about one month after he is alleged to have stolen the Bata slippers and less than a month before he was arrested for the bizarre theft, which grabbed headlines throughout the city.

Between the application for review and its dismissal, Mr. Djukic married Julia Sung, then in her early 20s, who was also charged in connection with the recent spa fraud. Mr. Djukic, Ms. Sung and two others today face more than 150 charges related to that case.

Though Mr. Djukic was freed after his arrest in the 2006 shoe heist - charges were withdrawn after the shoes were returned to the museum - he remained "under duress from the Immigration Department," according to a 2006 statement by Detective Peter Karpow, who worked on the Bata shoe case.

In fact, the border services agency arrested Mr. Djukic sometime in the 48 hours prior to his March 8, 2006, refugee board detention hearing over concerns he might not appear at future proceedings, according to Charles Hawkins, spokesman for the refugee board.

Mr. Djukic was detained until his second detention hearing on March 15, 2006, which concluded with an offer of release. Ms. Sung posted a $5,000 bond and assumed responsibility for Mr. Djukic in exchange for his release, according to a detention hearing report. Among other conditions for his release, Mr. Djukic was to check in with an immigration reporting centre each month, reside with Ms. Sung, and avoid engaging in "any activity subsequent to release which results in a conviction under any Act of Parliament."

Mr. Djukic reportedly worked as a construction worker and lived in a Yorkville condominium with Ms. Sung until his arrest last month.

He applied in 2007 for what is called a pre-removal risk assessment, another avenue a claimant may take in the hopes of acquiring status in Canada. The assessment, which involves an evaluation of the risk of returning a refugee claimant to his or her home country, was delayed for several months, then restarted, according to a source familiar with the border agency's process.

"We know this is of concern to all Canadians and, quite frankly, our hands are somewhat tied by the courts and the existing rules that make it even more difficult to finalize failed asylum claims," said Alykhan Velshi, a spokesman for Citizenship and Immigration Minister Jason Kenney.

The refugee board's Web site states that about 35,000 refugee protection claims were referred in 2008, and while about half these claims were finalized, Dan Murray, a spokesman for Immigration Watch Canada, said the statistics paint a misleading picture.

"The immigration industry has so sabotaged the system that even though people are denied their claim, they find a way to put off their removal," said Mr. Murray. "Hundreds of thousands of people have made refugee claims in Canada since the early 1990s. It's just a foot in the door and people find ways to stay."

But Danielle Norris, a spokeswoman for the immigration department, said Canada's refugee system is effective, balancing a refugee's need for protection with the safety of Canadian citizens. "This system is there for those who need it and is done on a case-by-case basis," Ms. Norris said.

Still, a spring 2008 report by Auditor General Sheila Fraser said Canada's border agency had lost track of 41,000 illegal immigrants, "jeopardizing the integrity of Canada's immigration program."

"The border services agency should spend more energy deporting criminals and less time deporting children and hard-working people," said Olivia Chow, NDP MP and that party's immigration critic. "If he is convicted, it's people like Mr. Djukic that the CBSA should focus on."

National Post

Wednesday, March 4, 2009


Sympathizer of terror groups was immigration board member

John Ivison, National Post
Published: Wednesday, March 04, 2009

It's well known that Khaled Mouammar wants Ottawa to remove Hamas and Hezbollah from a list of banned organizations and replace them with the Israel Defence Forces.

It's well known that the president of the Canadian Arab Federation recently called Jason Kenney, the Minister of Immigration, a "professional whore" for supporting Israel and criticizing the presence of Hamas and Hezbollah flags at a recent protest, prompting Mr. Kenney to say he would review the CAF's federal funding.

But it is less well known that Mr. Mouammar spent the 11 years prior to February, 2005, sitting as a member of the Immigration and Refugee Board, deciding whether refugee claimants from such North African countries as Morocco, Egypt, Algeria and Somalia should be allowed to stay in Canada.

No details are available on how many refugees Mr. Mouammar waved through the Canadian system, although one immigration lawyer who remembers him from his IRB days says he was known to have a "very high" acceptance rate. Board members typically have sole discretion over whether to admit a refugee claimant.

But his public advocacy of terror groups should raise questions about how a known partisan could possibly pass the IRB's screening process. How did someone who has long been sympathetic to terror groups come to hold a crucial position in the body designed to protect Canadians from terrorists? Phrases about foxes and chicken coops spring to mind.

The IRB has a code of conduct that requires members to conserve and enhance the organization's "integrity, objectivity and impartiality." Mr. Mouammar did not return calls seeking comment but readers can make up their own mind about his impartiality.

Since becoming president, the CAF head has shown a Robert Mugabe-like paranoia for blaming others, while ignoring the shortcomings of the side he supports.

Hamas and Hezbollah are "legitimate political parties"; Israel is a genocidal regime, guilty of "war crimes." "One day the nightmare brought about by Zionism and colonialism will come to an end," he wrote in a piece entitled Impressions of Palestine: 1948 and Today -- a clear rejection of a two-state solution in the Middle East.

Mr. Mouammar, a 68-year-old orthodox Christian who was born in Palestine and emigrated to Canada in 1965, has become a magnet for controversy.

In 2006, he was accused of circulating a flyer at the Liberal leadership convention denouncing candidate Bob Rae because his wife was vice-president of the Canadian Jewish Congress, "a lobby group which supports Israeli apartheid."

Last year, the CAF sponsored an essay-writing contest that encouraged Canadian high school students to consider "the ethnic cleansing of Palestine."

An organization that used to work on behalf of all Arabs in Canada, promoting civil liberties and human rights, while combating racism and hate, has been transformed into a single-issue distiller of venom.

In the past, the CAF has documented anti-Arab incidents during the Gulf War; debated the pros and cons of the Oslo Peace Accord; and argued at the Arar commission that there is no contradiction between security and "the fundamental values we share as Canadians." Now, it has been radicalized by its president and others.

Quite how such a man was allowed to become a gatekeeper of Canada's refugee process beggars belief, although his contributions to the Liberal party provide one possible explanation.

Mr. Kenney said that a man with such extreme views, who had already been president of the CAF before he joined the IRB, would not make the cut today.

"Khaled Mouammar was a Liberal political appointee to the IRB, who I gather has deep links in that party. His appointment by the Liberals illustrates the ways in which they abused the IRB appointment process, which we have reformed," he said. Candidates for IRB appointment must now pass through a thorough vetting process conducted by the IRB administration, he added.

Let's hope Mr. Kenney is right, for all our sakes. It might not be a bad idea to dust off some of those old files and see who did get into the country while Mr. Mouammar worked at the IRB. Meantime, the 40 or so Arab groups that make up the CAF should take action to oust a leader who has brought their organization into disrepute.