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Statutory Interpretation - Specific Terms - 'Or' (Disjunctive). Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers
In Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here where the successful JR applicant argued that immigration inadmissibility [under IRPA, s.34(1)(a) and (f) - 'Inadmissibility - Security'] required that the applicant was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage "contrary to Canada’s interests", and that such espionage have a Canadian nexus.
Here the court considered the common disjunctive "or", as a matter of statutory interpretation:[89] The Minister further submits that the use of the disjunctive "“or”" in the phrase "“against Canada or that is contrary to Canada’s interests”" [my emphasis] suggests that "“contrary to Canada’s interests”" does not require a nexus to national security, and that the two phrases should be viewed as separate and distinct.
[90] As noted, the Minister contends that the phrase "“against Canada”" already refers to Canada’s national security interests, and that interpreting the phrase "“contrary to Canada’s interests”" as also requiring a nexus to national security would render words of the provision superfluous and redundant, and would offend the presumption against tautology.
[91] Having already made those whose espionage targets Canada inadmissible, the Minister contends that Parliament could not have intended that espionage that is "“contrary to Canada’s interests”" be directed to the identical type of activity. In addition to the problems noted in the previous paragraph, such an interpretation would also be contrary to the presumption of consistent expression.
[92] The flaw in the Minister’s argument is, of course, that the phrases "“against Canada”" and "“contrary to Canada’s interests”" do not share an identical meaning. Espionage "“against Canada”" clearly refers to espionage that is targeted at Canada, whereas espionage that is "“contrary to Canada’s interests”" refers to espionage that may not be targeted at Canada per se, but is nevertheless contrary to the national security or security interests of this country. It is the nature and scope of those interests that is in dispute here.
[93] In addressing this issue, it is important to read the phrase "“Canada’s interests”" in the context of the rest of subsection 34(1) and the larger context of Division 4 of IRPA, which is the part of the Act that deals with inadmissibility to Canada. Doing so makes it clear that the phrase "“contrary to Canada’s interests”" in paragraph 34(1)(a) refers to Canada’s security interests, and not to a broad range of matters that may be of interest to Canada, as argued by the Minister.
[94] Division 4 of IRPA makes permanent residents and foreign nationals inadmissible to Canada for a variety of reasons. These include violating human or international rights (section 35), serious criminality (section 36), organized criminality (section 37) and misrepresentation (section 40).
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