Section 25 of the Immigration and Refugee Protection Act of Canada allows an officer to exempt an applicant from almost every requirement imposed on applicants for permanent residence. This exemption is based on "humanitarian and compassionate" grounds and has been part of immigration legislation and the discretionary powers of the executive in this country for decades.
Section 25 overcomes non-compliance with the Act and most inadmissibilities. It is, in essence, a safety net allowing an officer to consider all the facts and determine whether relief is warranted. The section allows immigration officers to "soften the sometimes harsh consequences of the strict application of IRPA".
It is fundamentally a subjective analysis.
The scope of this discretion is incredibly broad (and broadly worded) and in my opinion, constitutes a separate immigrant class (and always has).
There is no requirement that immigration officers making such decisions have a legal background; they are expected to deal with legislation, Federal Court jurisprudence, counsel submissions, country conditions (in a return scenario) and, often, expert medical and psychological reports. The guidance in place was in the form of CIC Manuals. The language of the Manuals was far more restrictive than the mere ordinary meaning of the words contained in the legislation.
The H&C assessment is a polycentric determination, one that the legislators have chosen to grant to front line decision makers (and a task wholly unsuited to the courts); these administrative decision makers have, to date, been granted deference and respect in terms of their assessments and the weight given to the various considerations raised by the applicant.
The 9 seers at the Supreme Court have ruminated on the humanitarian and compassionate exemption. The minority settled on a new test (as if officers didn't have enough tests and terminology to contend with). In their view, officers should grant relief where it would be "simply unacceptable" not to. Justice Moldaver fears that giving s.25 an overly broad interpretation risks creating another immigrant class, something not intended by the legislators. With all due respect to him, that's a bit like closing the barn door after the horse has bolted. As I stated above, the H&C has been a separate immigrant class for quite some time.
What can be scryed from the majority decision?
- The language in the Manuals is not restrictive, not exhaustive or mandatory but descriptive;
- An applicant doesn't have show that she will be affected by adverse conditions upon return, just that challenges are likely (and adopting Justice Rennie's analysis from Aboubacar);
- It can be inferred that the use of expert medical/psychological reports in immigration proceedings are acceptable, can be important and it's important for the officer to properly consider them (contradicting Federal Court jurisprudence to the contrary; see Justice Annis' decision in Czesak);
- Reiterating the importance, near primacy of the principle of protecting children in Canadian law (the "best interests of a child" assessment);
- An officer is to consider factors raised in a previous refugee claim and determine whether same would result in hardship or form a basis to grant humanitarian relief (something that confused officers have been doing since the Balanced Refugee Reform Act); and
- Contrary to Justice Moldaver, sympathy may well be enough.
What does this mean?
Will there be more applications for relief as a result of the Supreme Court siding with the applicant in Kanthasamy?
Will more applications for relief be granted as a result of this judgment (will the Federal Court be more likely to intervene in such decisions)?
Will there be more challenges to negative decisions for humanitarian and compassionate relief?
Or was this all just an exercise in "wordsmithing" (to borrow from Justice Moldaver) and semantics and not of substance?
I'm not sure if the majority broke any substantive new ground in Kanthasamy. What is contained in the majority decision can be found in any number of Federal Court decisions. Was it important to reiterate that the Manual is not binding on officers that have been granted broad discretion or that the language in the Manuals should not have been elevated (as it appears it has)? Perhaps.
Was it absolutely necessary to revisit the BIOC and re-state Baker? Probably not, but it can't hurt to see it elevated even further.
"...love children especially, for they too are sinless like the angels; they live to soften and purify our hearts and, as it were, to guide us. Woe to him who offends a child!" - The Brothers Karamazov
I am glad to see Justice Rennie's analysis with respect to reasoned inferences adopted by the Court (only partly because I was counsel for the applicant in that case).
While I am making an inference, it seems clear to me that the Supreme Court has put a seal of approval on the use of expert medical/psychological assessments and as a result, same will not be casually dismissed by officers (a position that was finding favour with certain Federal Court Justices).
Finally, the bad reasoning behind H&C officers failing to consider elements raised in a refugee claim; refusing to consider or excising them from a hardship assessment has, I think, finally been put to rest (even though Justices Gleason, Rennie and others at the Federal Court were doing their part as well).
I can't speak to whether this will mean more H&C applications, more applications for leave and a higher grant rate. That all remains to be seen.