A Snapshot of What’s Wrong with Canadian Administrative Law: MPSEP v. Tran, 2015 FCA 237
* I have been working on this post for a couple of weeks now, since the decision was handed down on October 30. It has only now been published *
Sometimes one may wonder whether administrative law doctrine really matters — and, moreover, whether my regular complaints are well-placed. Are things really all that bad? Can technical shortcomings in Supreme Court of Canada opinions really work serious injustice? Consider MPSEP v. Tran, 2015 FCA 237, a case that suggests things are very bad indeed.
At issue here was the decision of a ministerial delegate, based in large part on a report from a front-line Canadian Border Services Agency official, to refer Mr. Tran to an inadmissibility hearing. Neither the officer nor the delegate was a lawyer. Mr. Tran, a long-time permanent resident of Canada, had been part of a marijuana cultivation operation. He received a 12-month conditional sentence.
Section 36(1)(a) of the Immigration and Refugee Protection Act provides that individuals are inadmissible to Canada upon conviction for either (i) committing an offence punishable by a maximum term of imprisonment of at least 10 years; or (ii) committing an offence for which a term of imprisonment of more than 6 months is imposed.
Tran raised issues on both of the branches of s. 36(1)(a). First, between his commission of the offence and his conviction, the maximum term of imprisonment was increased for his offence (production of a controlled substance) from 7 years to 14 years. Pursuant to s. 11 of the Charter, Tran could only be sentenced to a maximum of 7 years. But was the delegate so constrained, or could he look to the maximum term of imprisonment at the time he had to decide whether to refer Tran for an admissibility hearing? Second, was Tran’s conditional sentence a “term of imprisonment” in excess of 6 months? Tran made additional submissions on his personal circumstances.
The CBSA officer, whose opinion was endorsed by the ministerial delegate, was unmoved. But Mr. Tran won in Federal Court: O’Reilly J. quashed the decision to refer him to an inadmissibility hearing. However, in an opinion by Gauthier J.A., the Federal Court of Appeal restored the delegate’s decision. The parties agreed that the standard of review was reasonableness. I will come back to this below.
The first problem is that the delegate did not develop “a purposive and contextual analysis” of s. 36(1)(a) (at para. 42). Given the issues at stake, the absence of a detailed interpretation in the delegate’s decision is a significant shortcoming. For one, the rule of lenity — that penal provisions be construed in favour of the accused — is at least arguably in play. For another, the potential retrospective application of an increase in a sentencing provision calls attention to Charter values. In addition, Mr. Tran observed that the delegate’s approach could give rise to absurd situations, such as where the maximum sentence for an offence committed long ago is later increased, rendering the individual suddenly liable to removal from Canada.
Yet Gauthier J.A. felt compelled, in light of the Supreme Court’s instruction to pay attention to reasons that could have been offered — but were not actually offered — in support of a decision, to accept any reasonable interpretation which was implicit in the delegate’s decision: “deference due to a tribunal does not disappear because its decision on a certain issue is implicit” (at para. 44: see also my post on Agraira). While I am comfortable with the proposition that deference should be given to decision-makers on the application of statutory interpretations principles like the rule of lenity, it is surely stretching things too far to defer to them where they evidently have not even considered the principles at stake. Yet, as Gauthier J.A. observed, this is what the Supreme Court jurisprudence seems to say. She issued a plea for clarity:
In cases, like this, where it is not evident that only one interpretation is defensible, it is quite difficult to do what the Supreme Court of Canada mandates us to do given the number of interpretative presumptions and principles that can be considered and applied. Some further guidance would certain!y be welcomed in that respect, especially when the relative weight to be given to competing presumptions and interpretative tools has never been clearly dealt with by the Supreme Court of Canada (at para. 45).
In such situations, I think the appropriate response must be to remit the matter to the delegate and ask him to produce a decision that squarely addresses the statutory and Charter arguments raised by Mr. Tran.
The second problem is that it would also have been reasonable for the delegate to construe the provisions in favour of Mr. Tran (see paras. 60 and 87). Indeed, in respect of the second branch of s. 36(1)(a), Gauthier J.A. wrote, it is “obviously open” to the decision-makers “to adopt another interpretation should they believe it is warranted…” (at para. 87). Another decision-maker could adopt a different interpretation in the future. Concretely, this means that the rights and obligations of permanent residents and foreign nationals convicted of crimes in similar circumstances to Mr. Tran’s could well depend on whether they appear before decision-maker A or decision-maker B (see also Martinez-Caro v. Canada (Citizenship and Immigration), 2011 FC 640, at paras. 48-50, per Rennie J.).
That might be acceptable were it not for the fact that Gauthier J.A. was addressing this issue in the context of a certified question. This is the third problem. The Supreme Court decided — apparently sub silentio — in Agraira that deference is appropriate even where the certified question procedure has been invoked by a Federal Court judge who states a question of general law to the Federal Court of Appeal. How much clearer could the legislature be about the need for authoritative resolution of questions of law? Even those of us who believe in a deferential approach must surely accept that Parliament may sometimes prescribe a correctness standard of review, an interpretation especially warranted in the immigration area where fundamental individual interests are at stake. We will doubtless know more when the Supreme Court hands down its decision in Kanthasamy (see my post here).
Finally — a fourth problem — it is not at all obvious that the reasonableness standard was actually appropriate here. Whatever about the certified question issue, the Federal Court of Appeal has regularly rebutted the presumption of deference in respect of front-line decision-makers. When ministerial delegates interpret statutory provisions, the Federal Court of Appeal has not rushed to defer to them. A similar argument could have been raised here: a front-line decision-maker with no legal expertise or training was simply not qualified to address the complex statutory and Charter arguments raised by Mr. Tran.
But if Tran is right, then deference is due to decision-makers who have no legal expertise, who do not address relevant arguments expressly in their reasons, and who may reasonably come to diametrically opposed conclusions as to similarly situated individuals. And the courts cannot intervene to resolve the issues authoritatively even though there is a strong indication that Parliament intended for them to do so. Somewhere along the line, something has gone rather badly wrong.
This content has been updated on November 13, 2015 at 15:54.