The Test in Khosa: Reasonableness or Patent Unreasonableness?
On Friday, October 26, 2007, the Supreme Court of Canada (“SCC”) granted leave to appeal in the case of Khosa v Canada (Minister of Citizenship and Immigration),  4 FCR 332. This immigration and administrative law case concerns a convicted street-racer facing deportation back to his home country of India.
In 1982, Mr. Khosa was born in India. He later immigrated with his parents to Canada in 1996 at the age of 14 and became a permanent resident of Canada. During the evening of November 13, 2000, both he and another accused, Bahadur Singh Bhalru, were involved in a high-speed automobile race on Marine Drive in Vancouver. This resulted in the death of an innocent pedestrian, Irene Thorpe, after Mr. Khosa’s car struck the victim on the sidewalk. Mr. Khosa and Mr. Bhalru were convicted of criminal negligence causing death contrary to section 220(b) of the Criminal Code, RSC 1985, c C-46. Both received conditional sentences of two years less a day, which included house arrest, a driving ban, as well as community service. Both individuals appealed their convictions and sentences, but the appeals were dismissed.
Under paragraph 36(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27, Mr. Khosa was declared inadmissible for serious criminality and ordered by the Immigration Division to be removed from Canada. He appealed his removal order, but did not challenge its validity. Instead he sought special relief on the basis of humanitarian and compassionate considerations. The Immigration Appeal Division refused to use its discretionary power to grant the relief requested. In coming to this decision, the board considered Mr. Khosa’s expression of remorse to the family of the victim, the possibility of his rehabilitation, as well as the likelihood of his re-offending. The board focused on the applicant’s refusal to admit his participation in a street race, although he did confess to speeding and dangerous driving. The board found this denial of street-racing “troublesome” and refused to grant the sought after discretionary relief.
Federal Court Decision
Mr. Khosa applied for judicial review of the removal order, but the Federal Court dismissed his application. The Federal Court decided that the standard of review for applications involving discretionary decisions made on humanitarian and compassionate grounds should be patent unreasonableness.
Federal Court of Appeal Decision
The Federal Court of Appeal, however, allowed Mr. Khosa’s appeal, finding that the standard of review should be reasonableness, instead of patent unreasonableness. In coming to this decision, the majority looked at various previous court decisions, including Baker v Canada,  2 SCR 817, where the SCC found that the standard of review of humanitarian and compassionate decisions should be reasonableness because the decision related “…directly to the rights and interests of an individual in relation to the government, rather than balancing the interests of various constituencies or mediating between them.”
Another case, Chieu v Canada (Minister of Citizenship and Immigration),  1 SCR 84, found that the standard of patent unreasonableness, which “requires that the result must almost border on the absurd,” is not reconcilable with the exercise of special or extraordinary power, which must be applied “objectively, dispassionately and in a bona fide manner” when considering all relevant factors.
The Federal Court of Appeal also differentiated this instant case from that of Suresh v Canada (Minister of Citizenship and Immigration),  1 SCR 3 [Suresh], which also relates to human rights and fundamental human interests. Though Suresh was adjudged under a standard of patent unreasonableness, this was due to the Minister’s decision to issue “a danger to the security of Canada” opinion. Such an opinion was found to be reviewable under the patent unreasonableness standard because of the Minister’s special expertise in matters of national security.
The Federal Court of Appeal also considered the “possibility of rehabilitation” factor, which was found to be a criminal law concept: an area in which the Board did not exhibit special expertise. Even if the Board disagreed with the criminal court’s decision in this area, it should pay deference to the criminal court’s findings, as the assessment of the possibility of danger to the public that an offender presents is very complex. Further, the Board should consider factors associated with this concept, including the absence of a criminal record (aside from the one at issue), the absence of previous convictions for dangerous driving, the recent history of the offender and his response to community supervision, including his education and work record. In this case, Mr. Khosa had no previous convictions, adhered to the conditions of his sentence, continued to attend temple and work, and apologized to the family of the victim.
After deciding that the correct standard of review was reasonableness, the Federal Court of Appeal reviewed the Board’s decision based on this new standard. They then found that the decision was unreasonable, set aside the original decision, allowed the appeal, and sent the matter back to the Board for reconsideration by a differently constituted panel. In applying this reasonableness standard, the Federal Court found that, in focusing entirely on the remorse issue, the Board failed to fully exercise its mandate of considering the appellant’s expressions of remorse, the possibility of his rehabilitation and the likelihood of re-offense. Further, Decary J.A. explained:
It clearly appears from the transcripts of the hearing that the presiding member – who wrote the majority decision – and counsel for the crown, had some fixation with the fact that the offence was related to street-racing, to such a point that the hearing time and time again was transformed into a quasi-criminal trial, if not into a new criminal trial…. It was as if the Board, or at least its presiding member, disagreed with the criminal sentence imposed on the appellant and saw in the humanitarian and compassionate decision an opportunity to redress the situation. Nevertheless, it is not the role of the Board to second-guess decisions of the criminal courts.
Leave was granted to appeal the decision to the SCC. This decision will have important implications not only for Mr. Khosa and his future in Canada, but also for the standard of review of Board decisions in humanitarian and compassionate situations.
Is the decision of the Federal Court of Appeal not correct in this case, that the standard of review should be that of reasonableness, rather than patent unreasonableness? In my opinion, by implementing a reasonableness standard, the Board is held to a higher degree of accountability for its decisions and there is more opportunity for review by the courts: this is important when considering what is at stake in a claim based on humanitarian and compassionate grounds. These are situations which are generally very important to the applicant as they concern the person’s direct interests and future. Further, the Board had no specialized knowledge of criminal law and was not in a position to question the ruling of the criminal court. If one were to extend wider discretion to the Board through the standard of patent unreasonableness, this could result in the Board’s ability to “correct” criminal decisions as it sees fit.
While Mr. Khosa’s future in Canada lies in the hands of the SCC, Nina Rivet, the victim’s sister, still waits for justice to be served, as she explained in an online article earlier this week. She wrote, “the system has been a complete failure. Why not just give up? Because these convicted criminals have to be accountable. If the politicians aren’t going to do it, then the victims have to step up and enforce the legislation that’s available to them to be accountable.”