Monday, 24 June 2013

Some Thoughts on the SCC Decision in Agraira

The Supreme Court of Canada rendered, through the pen of LeBel J., a unanimous judgment in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 last week.

The applicant is a Libyan national. He first sought and was refused refugee status: he claimed that he was a member of the Libyan National Salvation Front. This caused problems for him down the line. When he applied to become a permanent resident of Canada, he was deemed inadmissible because of his involvement in a terrorist organization. In short, he was not involved enough to be a refugee, but too involved to be admissible!

At that point, he requested ministerial relief on the basis of his unusual circumstances. Section 34(2) of the Immigration and Refugee Protection Act provides that although otherwise inadmissible, "a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest" will be treated as admissible.

An immigration officer prepared a report in his favour. A briefing note from the Canadian Border Services Agency also argued that the Minister should exercise his discretion in favour of the applicant.

Yet the Minister did not follow this advice, concluding instead: "It is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations".

1. The first question for the Court was whether deference was owed to the Minister in the exercise of this discretionary power, especially in light of the interpretive element involved. The Federal Court of Appeal has consistently refused to grant deference to ministerial interpretations of law. Mainville J.A., in the most extensive treatment of the question, cited concerns about the rule of law and separation of powers: Canada (Fisheries and Oceans) v. David Suzuki Foundation, 2012 FCA 40. (There are echoes of Scalia J.'s concern about administrative decision-makers' interpretations of their own regulations.)

The Court disagreed, though without detailed explanation:
[50]                          The applicability of the reasonableness standard can be confirmed by following the approach discussed in Dunsmuir.  As this Court noted in that case, at para. 53, “[w]here the question is one of fact, discretion or policy, deference will usually apply automatically”.  Since a decision by the Minister under s. 34(2) is discretionary, the deferential standard of reasonableness applies.  Also, because such a decision involves the interpretation of the term “national interest” in s. 34(2), it may be said that it involves a decision maker “interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (Dunsmuir, at para. 54).  This factor, too, confirms that the applicable standard is reasonableness.
I think this is the correct result. All of the substantive reasons that favour deference to administrative decision-makers' interpretations of law apply with equal if not greater force to ministerial departments: delegations of authority have been made, on the basis of the institutional competence of the departments in question. Concerns about the separation of powers are overblown. Legislative grants of authority in broad terms are a feature of the modern administrative state. Any problems they present are not unique to grants of authority to ministers and their departments.

2. From the Minister's laconic set of reasons, it was not evident how s. 34(2) had been defined, leading LeBel J. to note that there was an implied interpretation of law:
[58]    ... It is evident from the Minister’s holding that “[i]t is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations” that the Minister made a determination of the meaning of “national interest”. An interpretative decision as to that term is necessarily implied within his ultimate decision on ministerial relief, although this Court is not in a position to determine with finality the actual reasoning of the Minister. In these circumstances, we may “consider the reasons that could be offered for the [Minister’s] decision when conducting a reasonableness review” of that decision (Alberta Teachers’ Association, at para. 54). Accordingly, I now turn to consider, what appears to have been the ministerial interpretation of “national interest”, based on the Minister’s “express reasons” and the Guidelines, which inform the scope and context of those reasons. I will then assess whether this implied interpretation, and the Minister’s decision as a whole, were reasonable.
This is a slightly different situation from Alberta Teachers. There, the decision-maker had interpreted the statutory term at issue in similar factual settings: it was (in the Court's view) following a settled understanding. The same cannot be said of the Minister here. Rather, in exercising his discretion, the Minister necessarily had to interpret s. 34(2) and, in particular, the meaning of the term "national interest".

Analytically, this is surely correct. Often, interpretations of law are left unspoken, lurking just beneath the surface of a decision. Practically, however, the concept of the "implied interpretation of law" may offer an invitation to reviewing courts to chop up a decision into "implied" and "express" components. If the "implied" components are said to be "legal", or "jurisdictional", more searching judicial review could easily be justified. Segmenting administrative decisions in this way is problematic because it has the potential to reduce the degree of deference accorded to decision-makers.

The Court would have been better, in my view, not to mentioned the concept of "implied" interpretations at all. The question should have been whether the Minister's decision was reasonable, in terms of the facts and relevant legal provisions. Assessing reasonableness in this manner would not have required any segmentation.

3. Despite my general concern about "implied interpretations", the Court applied a reasonableness standard in the present case:
[64]                          In my view, the Minister’s interpretation of the term “national interest”, namely that it is focused on matters related to national security and public safety, but also encompasses the other important considerations outlined in the Guidelines and any analogous considerations, is reasonable.  It is reasonable because, to quote the words of Fish J. from Smith v. Alliance Pipeline Ltd., 2011 SCC 7 (CanLII), 2011 SCC 7, [2011] 1 S.C.R. 160, it “accords . . . with the plain words of the provision, its legislative history, its evident purpose, and its statutory context” (para. 46).  That is to say, the interpretation is consistent with Driedger’s modern approach to statutory interpretation.
Yet again, however, reasonableness review shades into correctness review. Here, the Minister's decision was reasonable only because it accorded with the result reached on the application of judicial principles of statutory interpretation. Put another way, the Minister was reasonable because he was right. But this surely cannot be the test for the reasonableness (as opposed to the wrongness...) of an interpretation of law!

4. Interestingly, the ministerial guidelines were taking as informing the meaning of s. 34(2):
[85]                          Finally, the broader context of s. 34(2) of the IRPA also includes the Guidelines.  Although not law in the strict sense, and although they are liable to evolve over time as the context changes, thus giving rise to new requirements adapted to different contexts, guidelines are “a useful indicator of what constitutes a reasonable interpretation of the . . . section” (Baker, at para. 72).  The Guidelines were published in 2005, and they applied to applications for ministerial relief under s. 34(2) at the time the Minister reached his decision on the appellant’s application.  As is evident from the numerous considerations contained in Appendix 1, the Guidelines represent a broad approach to the concept of the “national interest”.  They do not simply equate the “national interest” with national security and public safety, as the Federal Court of Appeal did.  Rather, they suggest that the national interest analysis is broader than that, although its focus may properly be on national security and public safety.
I think this is correct: the factual and administrative context cannot be divorced from and, indeed, invariably influence the meaning of a statutory provision.

Moreover, the guidelines created a legitimate expectation as to the process to be followed:
[98]                          In the case at bar, the Guidelines created a clear, unambiguous and unqualified procedural framework for the handling of relief applications, and thus a legitimate expectation that that framework would be followed.  The Guidelines were published by CIC, and, although CIC is not the Minister’s department, it is clear that they are “used by employees of [both] CIC and the CBSA for guidance in the exercise of their functions and in applying the legislation” (R.F., at para. 108).  The Guidelines are and were publicly available, and, as Appendix 2 to these reasons illustrates, they constitute a relatively comprehensive procedural code for dealing with applications for ministerial relief.  Thus, the appellant could reasonably expect that his application would be dealt with in accordance with the process set out in them. 
But LeBel J. held back from endorsing the applicant's further argument: that the guidelines created a legitimate expectation as to the factors that would be taken into account in exercising the discretion. This would have been far-reaching, allowing the guidelines to create a substantive legitimate expectation, not just as to how the discretion would be exercised in a particular case, but as to how it should be exercised in all cases. Given the Court's reluctance to sanction substantive legitimate expectations, it is unsurprising that LeBel J. did not endorse this argument (see para. 101).

In LeBel J.'s view, the Minister had followed the procedures set out in the guidelines.

5. On the facts, the Minister's decision was reasonable:
[89]                          Having concluded that the Minister’s implied interpretation of the term “national interest” is reasonable, I should also confirm that the decision as a whole is valid.  The Minister’s reasons were justifiable, transparent and intelligible.  Although brief, they made clear the process he had followed in ruling on the appellant’s application.  He reviewed and considered all the material and evidence before him.  Having done so, he placed particular emphasis on: the appellant’s contradictory and inconsistent accounts of his involvement with the LNSF, a group that has engaged in terrorism; the fact that the appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had sustained contact with the LNSF.  The Minister’s reasons revealed that, on the basis of his review of the evidence and other submissions as a whole, and of these factors in particular, he was not satisfied that the appellant’s continued presence in Canada would not be detrimental to the national interest.  In short, his reasons allow this Court to clearly understand why he made the decision he did.
[90]                          Furthermore, the Minister’s decision falls within a range of possible acceptable outcomes which are defensible in light of the facts and the law.  The burden was on the appellant to show that his continued presence in Canada would not be detrimental to the national interest.  The Minister declined to provide discretionary relief to the appellant, as he was not satisfied that this burden had been discharged.  His conclusion was acceptable in light of the facts which had been submitted to him.
To be fair to the Court, when it comes to reviewing reasons for reasonableness, it has generally been quite circumspect. Agraira follows the pack in that respect. 

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