Who Decides to Deport You When There's a Risk of Torture?

There is a piece in the latest print issue of Maclean's magazine (sub only) on a very interesting Federal Court case from earlier this month: Muhammad v. Canada (Citizenship and Immigration), 2014 FC 448.

M's details were posted on what I have dubbed "Canada's Least Wanted", the Canadian Border Services Agency's 'wanted' list of immigration violators. This began as a list of "war criminals" but has since been revised in tone and expanded in content. M argued that being placed on the list increased the risk that he would be tortured if returned to Pakistan.

Arrangements for deportation decisions of this nature are complex. Preliminary assessments are conducted on risks faced by the individual should s/he be returned and any security risks posed by the individual should s/he remain in Canada. These are delivered to a Ministerial Delegate who ultimately takes the decision to deport or not (see para. 71). Here, the Delegate rejected the assessment that M would be at risk of torture. Strickland J. held that this finding was unreasonable, the second time M has won a judicial review on this point. However, she rejected the argument that the Delegate was biased or that the decision-making structure was biased (para. 141).

Of greater interest are the facts, recounted in the Maclean's article, including a bizarre meeting between those responsible for the "Least Wanted" list and other members of the Delegate's department. We are assured by all concerned, and Strickland J., that the meeting was meaningless -- though "ill-advised" (para. 153) -- because of the absence of evidence that the Delegate was "influenced" by the meeting (para. 154). Of course, in bias cases, normally perception is what counts!

And more interesting still is a claim ultimately not addressed by Strickland J.: that M was entitled to have an independent decision-maker determine whether to deport him because his constitutional right to "life, liberty and security of the person" was engaged. Strickland J. was able to deal with the case on administrative law grounds and did not consider M's constitutional argument, but in a telling aside she noted:

[140]      It is not disputed that there was considerable government interest in the CBSA’s wanted list and that there were concerns about the implications of a positive risk assessment on the list. It is therefore certainly not outside the realm of possibilities that, given this interest, a decision-maker could be inclined toward a certain result in the absence of sufficient hallmarks of independence.

The independence question will have to be addressed some day. In Suresh at para. 78 the Supreme Court of Canada allowed for the possibility that individuals could be deported even to a real risk of torture in "exceptional circumstances" but these were not further defined. Given that the individual's constitutional rights are engaged, a rigorously fair process might well be required, presumably including a final determination by an independent decision-maker.

Further questions then arise. Can any official in a department controlled by the executive take the deportation decision? It is arguable that no such official can make a decision with an entirely independent mind. Can the decision even be taken by the Minister? Deporting someone to a real risk of torture is arguably a decision that should not be tainted in the slightest by policy considerations.

Indeed, is this a decision that can only be taken by a court?

Which leads to the ultimate question: would any court ever deport someone to a real risk of torture?

M has now succeeded twice in judicial reviews of Delegate decisions. Who knows what a third decision would bring.

Laverne Jacobs on "Grounded Impartiality"

The standard for impartial decision-making in administrative law continue to pose difficulties in practice. Here is an interesting new paper from Laverne Jacobs, "From Rawls to Habermas: Towards a Theory of Grounded Impartiality in Administrative Law":

At the same time that Canadian public law jurisprudence has grappled with some very key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism and culminating in deliberative democracy, this debate evolved over a span of more than four decades, yet, rarely, if at all, is this philosophical literature referred to in the public law jurisprudence dealing with impartiality. This paper inquires into whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public law share common ground. In what ways might this literature and jurisprudence speak to one another? The author argues that knowledge of the two debates challenges us to reconsider the judicial methods by which decision-making impartiality is established. This is particularly so in administrative law. The author proposes a theory of grounded impartiality to be used in Canadian administrative law. The theory requires courts and administrative actors to pay close attention to factors such as administrative actor provenance, shared and local understandings, and the possibility for genuine discourse, to allow for more well-informed, meaningful, and transparent decision-making about allegations of bias. While these factors have been advocated by certain political and moral philosophers as an ideal means for assessing an individual’s claim to the good life, a parallel approach has faced ambivalent reception in Canadian administrative law impartiality jurisprudence. This article will be published in the next issue of the Osgoode Hall Law Journal (51:2).

One of the most intractable difficulties in this area is the assumption that the so-called 'reasonable observer' is actually a real person. As has been argued and as Jacobs suggests (though she does not condemn the assumption outright) in her paper, the 'reasonable observer' is purely a judicial construct.

Accordingly, the appropriate question for a court to ask when a bias problem arises is not, "Would the hypothetical reasonable person think the decision-maker was not impartial?" but "Should the decision-maker recuse herself?" A similar problem sometimes arises with respect to the test for unreasonableness in substantive review. Again, the question should never be, "What would a hypothetical reasonable decision-maker have done or not done?" but rather, "Should this decision be struck down for unreasonableness?"

Answering these should questions is not easy. Constructs of 'bias' and 'reasonableness' must be developed. Jacobs suggests that five contextual factors may assist courts in dealing with impartiality claims. However, abandoning the pretense that hypothetical reasonable persons have any role to play in administrative law adjudication is a necessary pre-condition to a meaningful contextual inquiry. I am not sure that Habermas, Rawls et al have a crucial role to play, but the effort to integrate their insights is interesting.

Sequesters, Quarantines, or Common Sense?

There are important legal questions about the ability of the Canadian federal government to appoint members of the Federal Court and Federal Court of Appeal to the three Québec seats on the Supreme Court of Canada. I discuss some of these in this podcast with the McGill Law Journal.

These questions will be answered by the Court in a reference made to them by the federal government. I think the questions are serious -- especially in light of the legislative history -- and were not dispelled by the opinion provided by former justice Ian Binnie at the time that Mr. Justice Nadon was announced as the government's latest nominee.

In particular, in order to conclude that section 6 of the Supreme Court Act permits the appointment of federal court judges, the Court would have to explain (at the very least):

• Why this precise provision was the subject of a proposed constitutional amendment (a new s. 101B(2)) as part of the Meech Lake accord?
• How this reading is consistent with the purpose of section 6 (as underpinned by the pertinent and quite voluminous legislative history)? 
• Why the Constitution Act, 1867 is so concerned to make special provision (in s. 98) for judges from Québec?
• And how section 6 can be construed to allow the appointment of federal court judges when another provision of the Supreme Court Act limits ad hoc appointments of Québec judges to members of the Superior Court and Court of Appeal, but allows ad hoc appointments of other judges from the federal courts?

These are important questions (on which my view is that the best reading of s. 6 is that federal court judges are excluded: I may put my thoughts together in a paper, although I would not be the first to do so).

But one is liable to get sidetracked by relatively trivial issues. One is whether Justice Nadon lived in the province of Québec. This has precisely nothing to do with the question of statutory interpretation at issue.

A more recent one is whether Justice Nadon has been "quarantined", as sensationalist headlines announce, by the Court, and whether it is improper that he has an office in the building.

This language is most unfortunate and evidences a misunderstanding of the situation. Justice Nadon has been sworn in as a member of the Court. Of his own volition, he stood aside temporarily. It is entirely unsurprising that he has an office. Naturally, he does not participate in case conferences and the like. Certainly he does not discuss his own case with colleagues.

This sort of situation is not quite unprecedented. The House of Lords had to address an allegation that one of its members, Lord Hoffman, had an impermissible interest in the Pinochet litigation. They addressed it, indeed, finding that Lord Hoffman's involvement created a reasonable apprehension of bias. Life went on. Lord Hoffman is one of the most distinguished recent members of the House of Lords. Doubtless he did not discuss his own case with his colleagues. Withdrawing entirely from the business of the court, however, would have been inappropriate in the circumstances.

The Court has taken a very protective view of the integrity of the institution in setting out restrictions on contact between its eight other members and Justice Nadon. These restrictions remove any trace of a reasonable apprehension of bias that might taint the reference decision. In truth, they probably go further than is strictly necessary in the circumstances. As Eugene Meehan has said, this is the principle that justice should not only be done but be seen to be done "on steroids". Indeed, the likelihood of sensationalism on the part of the media may have led the Court to act so cautiously. This, I think, is a pity.

The risk is that these silly controversies and alarmist headlines will distract attention from the important issues about the special position of Québec's legal system, the nomination process and Canada's procedure for constitutional amendment.

UPDATE: Added a link to the podcast I did with the McGill Law Journal.

Child Adoption and the Rule against Bias

Nova Scotia (Community Services) v. T.G., 2012 NSCA 43 is a sad case about adoption. Sad because of the facts and sad because lengthy litigation has prevented a young child being placed in a permanent home.

Oh no, not that guy again!

Ontario's human rights legislation allows unsuccessful parties to a complaint to apply for reconsideration of a decision. But what if the adjudicator who already found against the party is the same adjudicator who determines the application for reconsideration: will the party applying for reconsideration really get a fair shake?

Statistical Evidence and Bias

I have posted previously about Sean Rehaag's empirical analysis of immigration decisions. He also authored an analysis of refugee claim data for 2011:

Data obtained from the Immigration and Refugee Board (IRB) through an Access to Information Request reveals vast disparities in refugee claim recognition rates across IRB Members in 2011.

In 2011, some Members very rarely granted refugee status, including Daniel McSweeney (0%, 127 decisions) and David McBean (1.9%, 108 decisions). Others granted refugee status in most of the cases they heard, including Thomas Pinkney (98.0%, 799 decisions) and Deborah Morrish (97.9%, 366 decisions).

This report was relied on by the applicants in Turoczi v. Canada (Citizenship and Immigration), 2012 FC 1423. Member McBean had refused their refugee claim. They argued, based on Rehaag's statistical analysis, that the rate at which Member McBean granted refugee claims raised a reasonable apprehension of bias: a fair-minded observer would not conclude that the decision-maker had decided the case fairly.

Zinn J. rejected the application. Without more, the statistics did not satisfy the test for bias:

[13]           Quite simply, the statistics provided by the applicants are not, without more, sufficiently informative.  Furthermore, one must question what the “informed person” would take from them.

[14]           The applicants submit, and this is the true focus of their submission, that the acceptance and rejection rate data, standing alone, is such that “one must be wilfully blind not to see that there exists a reasonable apprehension of bias” on the Member’s part.  This ignores or overlooks that the acceptance and rejection rate alone says nothing to the “informed person” even if the uninformed person might reach the conclusion that the applicants suggest.

[15]           Although the statistical data presented by the applicants may raise an eyebrow for some, the informed reasonable person, thinking the matter through, would demand to know much more, including:

•                     Were all of the figures, including, importantly, the weighted country origin averages, properly compiled?

•                     Did the RPD randomly assign cases within each country of origin?  If not, how did the RPD assign cases?

•                     Can factors affecting the randomness of case assignment be reliably adjusted for statistically?

•                     If so, what are the adjusted statistics, and what is their significance?

•                     If the RPD did randomly assign cases, what is the statistical significance of the Member’s rejection rate?

•                     Beyond the Member’s relative performance within the RPD, is there anything objective impugning the Member’s decisions (i.e. that suggests they are wrongly decided)?

•                     Accounting for appropriate factors (if that is possible), are the Member’s decisions more frequently quashed on judicial review than would be expected?

•                     Has the Member made recurring errors of a certain type, e.g. on credibility, state protection, etc., that bear a semblance to the impugned decision?

In short, the informed reasonable person, thinking the matter through, would demand a statistical analysis of this data by an expert based upon and having taken into consideration all of the various factors and circumstances that are unique to and impact on determinations of refugee claims before he or she would think it more likely than not that the decision-maker would not render a fair decision

Zinn J. did not shut the door entirely on the possibility that statistical evidence could assist an applicant in a future case. Analysis, rather than assertion, would be necessary. It will be interesting to see whether a future applicant engages a statistician to perform (and explain) a regression analysis of the type suggested by Zinn J. 

There might, in addition, be better cases in which to make arguments based on statistics. As Zinn J. observed, the present case was straightforward:

[18]           The applicants make no attempt to impugn the Member’s decision on their application.  It did not involve the exercise of discretion on his part.  The applicants claimed refugee protection fearing Ms. Karpati’s violent former boyfriend, who could not accept that their relationship was over and that a new one with Mr. Turoczi had begun.  The Member determined that the applicants had a suitable internal flight alternative (IFA) in Budapest, which is 200 kilometres away from the applicants’ home town, and that they had not rebutted the presumption of state protection.  These findings were straightforward applications of binding legal authorities and the relevant burden of proof.  In my view, the fact that the Member was practically obliged, in light of the relevant law and the burden of proof, to decide as he did, is another factor that a reasonable and informed person, examining the issue thoughtfully, would consider.  Indeed, in the instant case, there is every likelihood that an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that there was very little likelihood that any member would have decided the claim differently. 

Similar questions have been raised in Ireland. In Nyembo v. Refugee Appeals Tribunal, 2007 IESC 25, the applicant was permitted by the Supreme Court to make an argument based on statistics which demonstrated an elevated rate of refusal, but the case settled before the judicial review concluded.

I am not aware of any case in which a statistical argument based on elevated refusal rates have been successful. If I have missed one, please let me know.

Sending a Quashed Decision Back to the Initial Decision-maker Caused a Reasonable Apprehension of Bias

The long title explains the result in Conseil des montagnais de Natashquan c. Malec, 2012 CF 1392, a case about alleged discrimination against Aboriginal educators.

The Mayor, Bias, Procedural Fairness, and Democracy

Plenty of cyberink has already been spilled on the removal from office yesterday of Toronto mayor, Rob Ford. Hackland J.'s decision has aroused surprise, support, calls for reform of Ontario's Municipal Conflict of Interest Act, and, worst of all, bad sporting metaphors. While Hackland J.'s conclusions and interpretive approach are perfectly respectable, I do not think they are correct, as I will explain in this post. On first reading, I thought Hackland J.'s findings of fact were damning enough to give Ford little leeway on appeal. I am now not so sure.

To preview my argument, I think that Hackland J.'s interpretation of some of the statutory provisions is questionable and that his interpretive approach does not properly take account of context and the purposes of the Act. I will address the interpretations I disagree with in the context of explaining the facts of the case and then turn my attention to context and purpose. I should note that there are other questions too, in particular, whether the Act applies at all, but I won't address them in this post.

Be-BAPE-A-Lula

One of the more interesting political stories in Québec at the moment involves the new environment minister, Daniel Breton and the Bureau d'audiences publiques sur l'environnement. On a visit to the BAPE's offices in October, Breton allegedly told members of the BAPE that he would telephone the chairperson whenever the BAPE made a recommendation he disagreed with, before demanding their cell phone numbers.

Immigration Officer's Academic Writing Did Not Cause a Reasonable Apprehension of Bias

The applicant in Francis v. Canada (Immigration and Citizenship), 2012 FC 1141 was concerned that she had not got a fair shake before the Refugee Protection Division, on the basis of comments made by the decision-maker in previous academic writings. He had suggested that the refugee protection system gave rise to anomalies, and cited the applicant's place of origin, Saint Vincent, as an example. He had also argued that Canada's immigration policy could lead to a break down in social cohesion.

What Happens if you Overhear a Decision-Maker's Deliberations?

A funny thing happened at the Tribunal Administratif du Québec recently. A hearing was conducted into the suspension of an individual's driver's licence by videoconference. One of the administrative judges was present at the hearing; the other joined from a remote location. When the SAAQ -- the administrative agency that controls drivers' licences -- sought to introduce a medical note which it had not previously produced to the individual, the lawyers were asked to leave the room while the judges discussed admissibility.

Knowing who your friends are (and what that might do to you)

An interesting decision from the Federal Court of Canada today, the latest installment in a long-running labour relations saga at Canada Post.

A Successful Closed-Mind Argument in the Citizenship Setting

A basic principle of administrative law is that a decision-maker must approach its decisions with an open mind. Demonstrating that a decision-maker had a "closed mind", however, is extremely difficult. A decision-maker bent on refusing an application come what may will, if clever enough, keep his or her prejudices to him or herself.