Who Decides Here? Deference on Ministerial Interpretations of Law (Again)

I was rather optimistic in thinking that the question of deference to ministerial interpretations of law had been settled by the Supreme Court of Canada in Agraira (see my post here).

Two stern responses arrived last week from the Federal Court of Appeal, the body which deals more than any other with judicial review of ministerial decision-making. Most notably, Canada (Citizenship and Immigration) v. Kandola, 2014 FCA 8, but also Canada (Citoyenneté et Immigration) c. Dufour, 2014 CAF 81.

Some background is necessary. A few years ago, two visions emerged on the Federal Court of Appeal about the place of ministerial decision-making in the judicial-review universe. In the Georgia Strait case, Mainville J.A. invoked separation of powers concerns to hold that ministers are not entitled to a presumption of deference when interpreting statutes they administer. Meanwhile, dissenting in Takeda, Stratas J.A. argued that the presumption of deference applies to ministers (just as it does to all other decision-makers) but can be rebutted by reference to contextual factors.

In Agraira, the Supreme Court sailed past this controversy as if it did not exist. It assumed that the normal judicial review framework applied and concluded that previous cases confirmed that a deferential standard should be applied "in the case at bar".

That phrase seems to have been fateful. Kandola involved a child conceived through artificial means. The child's legal guardian and de facto father was a Canadian citizen. But there was no genetic link between father and child. Citizenship was refused. 

Noel J.A. accepted that the presumption of deference applies to ministerial interpretations of law, but found that the presumption was rebutted:

[43]           Specifically, there is no privative clause and the citizenship officer was saddled with a pure question of statutory construction embodying no discretionary element. The question which he was called upon to decide is challenging and the citizenship officer cannot claim to have any expertise over and above that of a Court of Appeal whose sole reason for being is resolving such questions.

Mainville J.A. agreed with this analysis (although at para. 86 he fired a shot across the Supreme Court's bows: ''assuming without clear legislative authority that Parliament intends to defer to the executive for the interpretation of its laws is, in my view, a paradigm shift in the fabric of Canada’s constitution'').

Significantly, Mainville J.A. dissented on the interpretive question. Noel J.A. concluded that the child was not entitled to citizenship. Given the novelty and public interest of the issues at stake, this disagreement tees the case up for a review by the Supreme Court which might give us some clarity on the question of deference to ministerial interpretations of law.

Dufour raised a different issue. The applicant had been adopted by a Canadian citizen. Indeed, the legality of the adoption had been recognized by a Quebec court. Yet a citizenship officer refused the application. A removal order had been issued against the applicant for having committed criminal offences. The officer was (it seems) concerned that the applicant was trying to circumvent the deportation process: citizens cannot be deported. Formally, the refusal was based on the failure to provide documentation from the Quebec adoption authorities.

The problem, as Gauthier J.A. observed, was that the officer could not second-guess the Quebec courts on the validity of the adoption. This was not a question that the legislature would have intended to leave to citizenship officers:

[26]           Dans le contexte du présent dossier, je suis d’accord avec le juge que c’est la norme de la décision correcte qui s’applique quant à l’interprétation du droit québécois en matière d’adoption et à l’effet du jugement de la Cour du Québec, puisqu’il est clair que le législateur n’avait pas l’intention de laisser ces questions à l’appréciation du ministre et de ses agents. La question de l’effet des jugements des cours canadiennes est une question de droit d’importance capitale pour le système juridique dans son ensemble et étrangère au domaine d’expertise de l’agente de la citoyenneté qui appelle la norme de la décision correcte : Dunsmuir v. New Brusnwick, 2008 SCC 9 (CanLII), 2008 SCC 9, [2008] 1 S.C.R. 190, au paragraphe 60.

Again, the standard of review of a ministerial decision was correctness. The Quebec decision on validity was res judicata (paras. 39-40) and the failure of the adoption authorities to provide information (exacerbated by the way the citizenship officer handled the situation) could not be held against the applicant.

I should not leave this topic without mentioning the air of unreality that these cases sometimes have. Although his or her name appears in the title of the case, the minister is rarely making the decisions in question (although Agraira was an exception). It is almost always a delegate, and often a low-ranking one. The decisions are those of the minister in name only.

Classic administrative law theory holds that in-house departmental arrangements are an exception to the general rule against delegation. Yet the expertise of some of these delegates is not self-evident, because they do not necessarily call on the institutional expertise of the ministry in their decision-making.

It is hardly surprising that judges on the federal courts, who deal with these sorts of delegate on a regular basis, are reluctant to defer to them on questions of statutory interpretation. Ultimately, the Supreme Court is going to have to treat this question more rigorously and, in doing so, pay close attention to the concerns of federal court judges.