Judicial review of international legal questions

Gib van ErtKirsch Conference, Vancouver, 6 May 2015

Articles on the Responsibility of States for Internationally Wrongful Acts 2001

• Art 1: “Every internationally wrongful act of a State entails the international responsibility of that State.”

• Art 3: “The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.”

• Art 4(1): “The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions…”

• Both the executive and the judiciary are state organs and thus capable of bringing international responsibility on the state.

• Art 12: “There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.” No fault or damage requirements.

Recent case law on judicial review of administrative action • Alberta (Information and Privacy Commissioner) v.

Alberta Teacher’s Association 2011 SCC 61 at para. 34: “unless the situation is exceptional…the interpretation by the tribunal of ‘its own statute or statutes closely connected to its function, with which it will have particular familiarity’ should be presumed to be a question of statutory interpretation subject to deference on judicial review.”

• This principle applies “unless the interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply”, namely constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator’s expertise, questions regarding the jurisdictional lines between two or more competing specialized tribunals and true questions of jurisdiction (Alberta (Information and Privacy Commissioner) v. Alberta Teacher’s Association 2011 SCC 61 at para. 30).

• It appears deference to administrative decision-makers interpreting home statutes extends even to ministerial decisions.

• Canada (MCI) v. Kandola 2014 FCA 85 at para. 86: “The recent decisions of the Supreme Court of Canada in Agraira v. Canada (Public Safety and Emergency Preparedness) 2013 SCC 36…and McLean v. British Columbia (Securities Commission) 2013 SCC 67…stand for the proposition that the presumption of reasonableness set out in…Alberta Teacher’s Association extends to any administrative decision maker (including a ministerial decision maker) interpreting his or her home statute.”

• Mainville J.A. (dissenting) added, “I deeply disagree with this approach on a principled basis for the reasons I extensively set out in Canada (Fisheries and Oceans) v. David Suzuki Foundation, 2012 FCA 40.…As I indicated there, 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.”

• Result of this reasoning is that incorrect legal determinations, when made by administrative decision-makers—including ministers of the Crown—will be tolerated where:

they arise from a ‘home’ or related statute;

they do not involve a constitutional question, a question of law of general importance to the legal system as a whole or a true question of jurisdiction; and

they are reasonable (despite being wrong).

Application of this doctrine to international legal questions

Febles v Canada (MCI) 2012 FCA 324 • Cuba refugee to US was convicted of criminal offences there and served sentences. As a result he lost his refugee status.

• In 2008, he crossed into Canada and applied for refugee protection. Question was whether he was excluded by art. 1F(b) of the Refugee Convention (“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that…he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”).

Febles v Canada (MCI) 2012 FCA 324 • Court agreed in the result but not on standard of

review. • Evans JA for majority: “Article 1F(b) is a provision of

an international Convention that should be interpreted as uniformly as possible…Correctness review is more likely than reasonableness review to achieve this goal, and is therefore the standard to be applied for determining whether the RPD erred in law by interpreting Article 1F(b) as precluding consideration of Mr Febles’ post-conviction rehabilitation and his present dangerousness.”

Febles v Canada (MCI) 2012 FCA 324 • Stratas JA: “World-wide uniform interpretations of the

provisions in international conventions may be desirable. However, that depends on the nature of the provision being interpreted and the quality and acceptability of the interpretations adopted by foreign jurisdictions. For example, foreign interpretations may not always embody values and principles to which we subscribe….In particular cases, our courts are well-placed to assess whether their decisions should conform to foreign decisions. But some of our tribunals are equally well-placed….In some cases, reasonableness review, not correctness review, may be warranted.”

B010 v. Canada (MCI) 2013 FCA 87 • Appeals of judicial review decisions. The appellants were

Sri Lankan refugee claimants. The Immigration Division of the Immigration and Refugee Board (“Board”) declared both inadmissible to Canada pursuant to s. 37(1)(b) of the IRPA (organized criminality, people smuggling, trafficking in persons or money laundering).

• B010 and B072 were alleged to have been compensated for their work on the boat and were therefore said to be inadmissible as people smugglers (despite also being smuggled people).

• The issue was whether material benefit was an element of people smuggling under IRPA s. 117. On its face it is not, but a protocol to the Palermo Convention against Transnational Organized Crime 2000 (to which Canada is a party) requires material benefit in its definition of migrant smuggling.

• The certified question was, “For the purposes of paragraph 37(1)(b) of the Immigration and Refugee Protection Act, is it appropriate to define the term “people smuggling” by relying on section 117 of the same statute rather than a definition contained in an international instrument to which Canada is a signatory [sic]?”

B010 v. Canada (MCI) 2013 FCA 87

• Dawson J.A. applied reasonableness not correctness; the meaning of “people smuggling” in a home statute (IRPA) did not raise a constitutional question, a question of law of general importance to the legal system as a whole or a true question of jurisdiction.

• She upheld the decisions below as reasonable, finding nothing in international law prohibiting s. 117’s omission of the material benefit requirement or requiring Canada to implement that requirement. In fact she held that s. 117 conformed with Canada’s international obligations.

B010 v. Canada (MCI) 2013 FCA 87

• On Febles, Dawson J.A. said: “I am mindful that this Court has previously applied the correctness standard of review to the Refugee Protection Division’s interpretation of international conventions… [In Febles] the presumption of reasonableness review was rebutted by the majority of the Court in view of the need to interpret international conventions uniformly. In my view, cases such as Febles are distinguishable on the basis that here, the Board was interpreting sections 37 and 117 of the Act. Further, unlike the Refugee Convention, the Protocol anticipates individual states will enact different measures to fulfil the Protocol’s objectives…. The uniformity concerns in Febles do not apply to the Protocol.”

B010 v. Canada (MCI) 2013 FCA 87

• Federal Court judges have noticed a tension between Febles and B010.

• Their proposed resolution seems to be that correctness applies where a treaty provision itself is being interpreted or applied, but reasonableness applies where a domestic provision (with international legal ramifications) is being interpreted or applied.

Federal Court cases since Febles and B010

• Druyan v. Canada (Attorney General) 2014 FC 705 at para 38: “…the Federal Court of Appeal has said that the need to interpret international conventions uniformly sometimes justifies a correctness standard (see Febles…). However, that seems to apply only when the text of the convention is being interpreted directly. In B010…the Federal Court of Appeal decided that reasonableness was still the appropriate standard when the decision-maker is interpreting the statute that implements a convention, especially where the convention in issue allows state parties to choose how to achieve the convention’s objectives.”

Federal Court cases since Febles and B010

• Haqi v. Canada (MCI) 2014 FC 1167 at paras 24-26: “In Febles…the presumption of reasonableness was rebutted because the interpretation of an international convention…must be interpreted as uniformly as possible.…[T]he task of the Board in the case at bar is akin to B010.…Here, the Board was asked to interpret one of the inadmissibility provisions of the IRPA—not the Refugee Convention as incorporated in the IRPA by way of reference….the Board is asked mainly to interpret its home statute and not an international convention…”

Federal Court cases since Febles and B010

The “statute not treaty approach” and Canada’s international responsibility• This “statute not treaty approach” risks breaches of

international law through deference to incorrect answers to international legal questions by administrative decision-makers.

• It also overlooks the normative foundation of the presumption of conformity, namely that (out of respect for the executive) Canadian courts do not want to be responsible for putting Canada in default of its obligations.

• Zingre v. The Queen (1981): “In responding affirmatively to the request which has been made the Court will be recognizing and giving effect to a duty to which Canada is subject, by treaty, under international law.…The Treaty of 1880 places Canada under a specific obligation to comply with the Swiss request. If Canada denies the Swiss request it will be in breach of its international obligations.”

• Ordon Estate v. Grail (1998): “…applying the one-year limitation period in s. 649 to all fatal accident claims stemming from boating collisions would place Canada in breach of its international treaty obligations….In choosing among possible interpretations of a statute, the court should avoid interpretations that would put Canada in breach of such obligations…” 

• R v Hape (2007): “…the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations…”

• The risk of international breach is present whether the legal question before the administrative decision-maker arises directly from the treaty or by means of implementing provisions or other statutes of international consequence. The “statute not treaty” distinction may ring true domestically but is meaningless internationally.

• Deference to administrative decision-makers who get international law wrong is inconsistent with the “judicial policy” of avoiding “constructions of domestic law pursuant to which the state would be in violation of its international obligations”.

• A deferential standard of review to questions of international law, however they arise, is bound to result in inconsistent and mistaken approaches to Canada’s international legal obligations.

• E.g., where two possible (i.e., reasonable) interpretations of a statutory provision are available, one of which conforms to Canada’s international obligations and one of which does not (e.g., GreCon Dimter), deference will permit the non-conforming interpretation to prevail.

• The ensuing non-conformity (created by the administrative decision-maker and upheld by the deferential court) will be a wrongful act attributable to Canada in international law.

• Judicial deference to international legal questions is thus a recipe for internationally wrongful conduct by Canada.

Solutions• Conservative fix: apply the Febles rule that

correctness applies to international legal questions in order to promote comity and uniformity of interpretation. This may be another way of saying that all international legal questions are of central importance to the legal system as a whole.

• Radical fix: quit deferring to incorrect legal decisions of any kind. Apply the rule of law instead of the rule of deference.

Gib van ErtCounselHunter Litigation Chambers604 891 2409 gvanert@litigationchambers.com