Immigration: Justiciability and Procedural Fairness

An organization entered into an agreement with the Minister for Citizenship and Immigration to sponsor immigrants to Canada. Initially, the agreement provided that the Minister would cover all health care costs. Subsequently, the federal cabinet (of which the Minister is a member) issued an order which had the effect of requiring the organization to defray certain medical expenses. The organization claimed that this would cost about $400 per immigrant (of which they had sponsored about 1,000) per year. In Hospitality House Refugee Ministry Inc. v. Canada (Attorney General), 2013 FC 543, an application for judicial review was dismissed.

Boilerplate Reasons

The President of France, M. Hollande, has recently suggested that where the administration fails to reply to individual decisions silence should be taken as indicating consent: "dans de nombreux domaines, le silence de l’administration vaut décision d’acceptation et non plus décision de rejet". 

More on Assisted Suicide and Guidelines

Richard Ekins has an interesting response to my post Death, Democracy and Delegation over on the UK Con Law blog.

I have just posted a comment in reply which is worth reproducing here:

I perhaps did not identify my central point with sufficient precision. My goal was to highlight the democratic potential of administrative guidelines, in terms of facilitating public debate inside and outside of Parliament, opening up the possibility of interaction between Parliament, the Director of Public Prosecutions and the public, and giving effect to popular opinion. Democracy does not (and ought not) begin and end at the edges of legislative chambers, a point underscored by the Menard Report. As is clear from my post, I agree with you that the Report’s proposals are ultimately unconstitutional, though because they breach the division of powers in the Canadian constitution, not the separation of powers. What is interesting is the Report’s emphasis on administrative guidelines as the means of giving effect to the popular will. More generally, administrative guidelines can be useful in responding to a lack of clarity in primary legislation. As Justice Scalia noted this week, albeit in a different context, about the need to engage in line-drawing when primary legislation is not clear: “These lines will be drawn either by unelected federal bureaucrats, or by unelected (and even less politically accountable) federal judges”. It is not obvious that only judges do and ought to have a say in situations where primary legislation is not clear.

Are the Irish and English prohibitions on assisted suicide clear? This is not a point I addressed at all in my post, but I can venture some observations here. Doubtless, section 2(1) is clear, but the presence of 2(4) complicates matters.Once one accepts (as I think one must, at least as a matter of law), that 2(1) engages Article 8(1) of the Convention, 2(4) takes on a character very different from the “130 or so” equivalent provisions (or, at least, those of them that do not violate Convention rights). It loses the character of a general supervisory power and adopts that of a discretion that must be exercised in accordance with individuals’ Convention rights. On this reading, 2(1) and 2(4) cannot be read in isolation but form part of a complete scheme the legitimacy of which must be assessed in the round. One could question whether administrative guidelines can ever be “law” for the purposes of this analysis. For my part, I think refusing to so recognize them is to privilege a formal conception of “law”. Guidelines are not simply internal tools but have an effect on the exercise of administrative powers and, in turn, on the legal rights of individuals. Given this effect, the foreseeability and predictability requirements of Article 8(2) kick in, and, more generally, disclosure of the guidelines becomes important.

As to the more general point about discretion and guidelines, I agree with Aileen. If enforcement discretion is being exercised, it is preferable that the relevant considerations be made publicly available. That is not to say that guidelines should always be required, just that administrative guidelines do no less violence to the rule of law than case-by-case decision-making behind closed doors.

Reviewing Regulations

The Supreme Court of Canada heard argument last Monday in an important case on reviewing delegated legislation: Shopper's Drug Mart v. Minister for Health. The pharmacies lost in the Ontario Court of Appeal: 2011 ONCA 830; though Epstein J.A. delivered a convincing dissent. Up for discussion at the Supreme Court of Canada was the vires of the regulations and, in particular, whether they sought to use a power to regulate to prohibit commercial activities.

Deference on Jurisdictional Questions: the SCOTUS Weighs In

Should courts defer to administrative decision-makers' interpretations of the limits of their own statutory authority? The Supreme Court of the United States finally answered that question in the affirmative today, in City of Arlington v. Federal Communications Commission. I think the majority is absolutely right, as I explain below. Indeed, Scalia J.'s majority opinion is must-read material for lawyers and law students interested in the concept of "jurisdictional error".

Refusal to Review Factual Error

Common law courts are generally quite reluctant to review decisions for factual errors. Like all generalisms, this significantly understates the complexity of the area. Nonetheless, a recent Irish decision provides a fine illustration.

In Richardson v. Mahon, [2013] IEHC 118, the applicant challenged a factual assertion in a report issued by the respondent tribunal. The factual assertion was based on the applicant's alleged failure to account for a sum of money. But, as the applicant observed, counsel for the tribunal had never asked him to account for the sum of money in question!

Death, Democracy and Delegation

I have a new post at the UK Con Law Group blog. I praise the Ménard report recently commissioned by the Assemblé Nationale while reiterating my earlier criticisms of the Irish High Court decision in Fleming v. Ireland, [2013] IEHC 2.

Here is the closing paragraph:

Whatever its ultimate fate, the Ménard report’s orientation is preferable to that of the Irish High Court. Legislators cannot foresee every eventuality. A legitimate response is to vest discretion in administrative actors. Once this has been done, however, decision-making with a public aspect is preferable to decision-making behind closed doors. Moreover, published guidelines can provoke popular debate and legislative reaction, thereby playing a democracy-enhancing role. Even if the Ménard report proves legally flawed, it has highlighted the democratic potential of administrative guidelines.

I should say, given that I have come back to give it several kicks, that I think the High Court's analysis of the constitutionality of the prohibition on assisted suicide was much, much better than that of the Supreme Court.