Wednesday, 28 November 2012

Interpretations of "Home" Statutes and Deference

Just a very brief note on a couple of recent first-instance decisions that caught my eye. It has been suggested (para. 22) that the Supreme Court of Canada has recently indicated a strong preference for deferential judicial review when decision-makers are interpreting their constitutive or "home" statutes. Nevertheless, the categories of jurisdictional error and general question of law, said to require intrusive judicial review, remain.

In Memnook v. Wapass, 2012 FC 1307, the Thunderchild First Nation Appeal Tribunal was said to have committed a jurisdictional error. It had referred to the wrong provision of its home statute in concluding that an application to it was barred. Given that a standard of review of correctness was applied, the Federal Court did not address the suggestion that despite the error, the Tribunal's conclusion could be justified in substance.

In Murray v. British Columbia (Superintendent of Motor Vehicles), 2012 BCSC 1730, the issue of whether a police officer's report of a roadside screening test had been properly sworn and affirmed was held to be a matter of general law of central importance to the legal system. This even though the decision-maker (a delegate of the Superintendent of Motor Vehicles), who had imposed a driving ban, was interpreting his home statute.

I don't want to attack the substance of these decisions. My point is simply that, despite the words and approach of the Court, it is straightforward for lower courts to justify intrusive judicial review. Changing this will require a change in administrative law doctrine.

UPDATE: Another one: Linise v. Canada (Citizenship and Immigration), 2012 FC 1166. It seems like a fair result: the applicant was deemed inadmissible to Canada because of a miniscule amount of medical marijuana he had neglected to clear out of his luggage. This was said to run afoul of section 159 of the Customs Act
159. Every person commits an offence who smuggles or attempts to smuggle into Canada, whether clandestinely or not, any goods subject to duties, or any goods the importation of which is prohibited, controlled or regulated by or pursuant to this or any other Act of Parliament.
Thus, the decision turned on an interpretation by an immigration officer of the Customs Act. This was not the officer's home statute and, accordingly, a standard of correctness was applied. Interestingly, the use of the word "fraude" in the French version was held to require mens rea. None being present on the record, the application was allowed.

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