The "Range" of Reasonable Outcomes: a Spectrum or an Accordion?

My post welcoming Evans J.A.'s recent suggestion that weight could be accorded to administrative determinations of procedural fairness questions has provoked some debate, some in the comments section of that post, some on Twitter and some in emails to me. Another Federal Court of Appeal decision is therefore timely: Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56.

The issue here was the revocation of the security clearance of an individual who worked in a port. He was suspected of involvement with the Hells Angels, which led the Minister to believe "there [was] a risk that [he would] be suborned to commit an act or to assist or abet any person to commit an act that might constitute a risk to marine transportation security" (Marine Transportation Security Regulations, SOR/2004-144, s 509).

Stratas J.A. applied a standard of reasonableness to the decision, rejecting any suggestion that it should be spliced into separate components; this reading of the Supreme Court's decision in Agraira minimizes the importance of the troublesome distinction between "implied" and "express" interpretations of law.

Stratas J.A. concluded that the "range" of reasonable outcomes was quite broad in this case:

[91]           Some of the cases in paragraph 88, above, give us guidance on the breadth of the ranges in a particular case. In some cases, Parliament has given a decision-maker a broad discretion or a policy mandate – all things being equal, this broadens the range of options the decision-maker legitimately has. In other cases, Parliament may have constrained the decision-maker’s discretion by specifying a recipe of factors to be considered – all things being equal, this narrows the range of options the decision-maker legitimately has. In still other cases, the nature of the matter and the importance of the matter for affected individuals may more centrally implicate the courts’ duty to vindicate the rule of law, narrowing the range of options available to the decision-maker.

[92]           In considering the breadth of the range of reasonableness available to the Minister in this case, I have considered the following:

•                     The Minister’s decision is a matter of great importance to Mr. Farwaha, affecting the nature of his work, his finances, and his prospects for advancement.

•                     The decision concerns security matters. Wrong decisions can lead to grave consequences.

•                     Security assessments involve some policy appreciation and sensitive weighings of facts.

•                     The Minister’s decision in this case requires assessments of risk based on whether reasonable grounds for suspicion exist. 

Stratas J.A. has -- again -- teased out the logic underneath the Supreme Court of Canada's gnomic recent decisions. There is some attraction to this formulation. On the surface, it would simplify administrative law greatly if the standard were reasonableness most or all of the time, subject only to the "range" expanding and narrowing depending on "all relevant factors" (at para. 89, quoting the Supreme Court).

Or would it?

Here is a (Canadian) spectrum of intensity of review:

Correctness --> Weight --> Proportionality --> Reasonableness --> Patent Unreasonableness --> Non-justiciability

Two things invariably matter: (1) how to decide where on the spectrum a decision lies and (2) how to define the various fixed points on the spectrum. In principle, there could be infinite points on the spectrum, between correctness and non-justiciability, but our creativity, time and patience are limited: see the vibrant discussion in the comments to this post on whether "weight" is a meaningful standard. (For a fun dinner-party game, try matching cases and/or other jurisdictions to the fixed points/standards with your friends!)

The trend in Canada, of which Farwaha is the most recent evidence, is to develop an overarching "range" of "reasonableness". Yet despite its apparent simplicity, the "range" solution does not do away with the need to respond to (1) and (2). It fudges (1) by referring to "all relevant factors" (whatever those may be!) and ignores (2) altogether, even though it is clear that the "range" narrows and expands depending on "all [the] relevant factors". For example, where the "range" allows only one "clear" answer, we are arguably in the correctness part of the spectrum above, and where the "range" is especially broad we are arguably in the patent unreasonableness area where a decision will be upheld if any relevant material can be provided in support of the decision.

The problem is that while (1) and (2) can be hidden, they cannot be eliminated. If we hide them, the law in practice becomes confused and confusing because nobody knows what factors are admissible or what weight they are given. Worse, (1) and (2) might be conflated. Better in my view to answer (1) and (2) as carefully as we can (here is my contribution).

Maybe the new "range" is more like an accordion. When squeezed by an experienced professional it produces music of great beauty. When fiddled with by the incompetent it makes a horrendous noise that leaves everyone in the audience either confused or horrified.