Supreme Court decision in Agraira v. MPSEP

Released today, June 20, 2013, the Supreme Court of Canada decision on the Minister's powers under s. 34(2) of IRPA, upholds a broad Ministerial discretion. Section 34(2) allows the Minister to decide that a person otherwise inadmissible to Canada on security grounds is admissible if their presence in Canada would not be detrimental to national security. Guidelines had been published by Canada Immigration  listing a number of factors to consider in assessing an application for s. 34(2) relief. In Agraira, the Minister had not referred to many of the factors listed in the guidelines, and also failed to define the term national interest. The Minister based his decision solely on issues of public safety and national interest. The Federal Court of Appeal upheld this approach, noting that the guidelines, including references to humanitarian factors, could be ignored.

The SCC has now held that although a s. 34(2) determination is not concerned only with public safety and national interest, and that factors such as the objectives of IRPA, the Charter, democratic values and the guideline factors listing personal circumstances of the appellant are also important, it may be assumed that the Minister considered these factors. Applying a principle called "implied interpretation" the Court assumed  that the Minister had considered all of the appropriate factors and had applied the correct definition to national interest, even though no where in his reasons did he articulate many of  the applicable principles listed as relevant by the Court.