Tuesday, 15 January 2013

Deference on Questions of International Law

The majority of the Federal Court of Appeal in Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324 refused to defer to the immigration authorities' interpretation of Article 1F(b) of the Refugee Convention (as implemented by s. 36 of the Immigration and Refugee Protection Act).

The question at issue was whether the applicant had properly been excluded from refugee status on the basis of two offences of assault with a deadly weapon committed in the United States:
[3]            Mr Febles says that alcohol was a factor that led to his commission of these crimes, he has served his sentences, and is now rehabilitated. He argues that the purposes of Article 1F (b) are to prevent ordinary criminals from escaping local criminal justice by acquiring refugee status, and to protect the public of a receiving state from convicted criminals who are dangerous. Since Mr Febles had served his sentence, he was not a fugitive from justice. Consequently, he says, the RPD was obliged to consider whether, despite his criminal record, he represents a danger to the Canadian public.
The Court was satisfied that the authorities had been correct in excluding the applicant:
[50]         These documents are not determinative of the interpretation of the Convention. In my view, on the basis of the text of Article 1F (b), its known purposes, the scheme of IRPA, and international jurisprudence, Article 1F (b) should be interpreted as excluding rehabilitation and present dangerousness from the assessment of the seriousness of a crime committed by a refugee claimant before coming to Canada. 
There were, however, conflicting views on the appropriate standard of review. For the majority, Evans J.A. applied a standard of correctness:
[24]         I agree with Mr Febles that the normal presumption that reasonableness is the standard of review applicable to tribunals’ interpretation of their enabling statute does not apply in this case.  Article 1F (b) is a provision of an international Convention that should be interpreted as uniformly as possible: see, for example, Jayasekara at para. 4. Correctness review is more likely than reasonableness review to achieve this goal, and is therefore the standard to be applied for determining whether the RPD erred in law by interpreting Article 1F (b) as precluding consideration of Mr Febles’ post-conviction rehabilitation and his present dangerousness. Further, the interpretation of Article 1F (b) does not give rise to any ambiguity.
Stratas J.A. wrote concurring reasons on the standard of review issue. He was not persuaded :
[76]           World-wide uniform interpretations of the provisions in international conventions may be desirable. However, that depends on the nature of the provision being interpreted and the quality and acceptability of the interpretations adopted by foreign jurisdictions. For example, foreign interpretations may not always embody values and principles to which we subscribe. I do not read paragraph 4 of Jayasekara, supra as saying something different on this.

[77]           In particular cases, our courts are well-placed to assess whether their decisions should conform to foreign decisions. But some of our tribunals are equally well-placed to assess that – sometimes even better-placed – armed as they are with specialized understandings, policy appreciation, and expertise. In some cases, reasonableness review, not correctness review, may be warranted.

[78]           In Dunsmuir, supra, the Supreme Court has developed certain categories of questions which require correctness review. The interpretation of provisions in international conventions is not yet one of them. Nor should it be. International conventions address many subjects, some quite technical and narrow. Some of those subjects can benefit from interpretations and applications by tribunals with specialized understandings, policy appreciation, and expertise. Again, on occasion, reasonableness review, not correctness review, may be warranted.
There is an outside chance that the Supreme Court of Canada will address this issue in this week's hearing in Ezokola, 2011 FCA 224, a case about another part of Article 1F (complicity in war crimes and crimes against humanity). I say outside chance because, from looking at the factums filed by the parties, both sides think the Refugee Protection Division made a sufficiently serious error that it is not necessary to determine the standard of review. The factum for the appellant addresses the question in paras. 78-87, reaching the opposition conclusion to Stratas J.A. Perhaps, though, in light of Stratas J.A.'s concurring reasons in this case, the Court will decide to broach the question.

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