Unresolved Issues in Standard of Review: B010 v. Canada (Citizenship and Immigration), 2015 SCC 58
Although B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 was billed in the initial summary as an administrative law case, there is precious little discussion of the general principles of standard of review in McLachlin C.J.’s decision for a unanimous Supreme Court of Canada. At issue was the interpretation of legislation designed to discourage people smugglers by making them ineligible to claim refugee status in Canada.
The appellants were not people smugglers in the commonly understood sense of the term — B010, for instance, worked in the engine room of a ship without remuneration — but the government argued that the legislation was designed to exclude those who gave “any and all assistance to undocumented migrants to Canada” (at para. 18). Both the Immigration and Refugee Board and the Federal Court of Appeal agreed with the government that the legislation should be read broadly (though the Federal Court was split) but the Supreme Court of Canada preferred a narrow interpretation and remitted the cases to the Board.
As to the standard of review of the Board’s decision, McLachlin C.J. recognized that there is an unresolved issue about whether courts should defer to interpretations of international law: “Recent decisions in the Federal Court of Appeal have taken different views on whether questions of statutory interpretation involving consideration of international instruments should attract review on the standard of correctness or of reasonableness” (at para. 24). The issue remains unresolved. McLachlin C.J. held it was not necessary to address it because the interpretation under attack “was not within the range of reasonable interpretations” (at para. 26).
This is an improvement on the Supreme Court decision in Febles, which ignored the issue altogether (see my post), but is nonetheless regrettable. Federal Court and Federal Court of Appeal judges deal with immigration matters on a regular basis. Without some guidance from the Supreme Court, it is difficult for them to know whether to defer or not — or, put another way, how to do their jobs. This is not a theoretical concern. It has serious practical implications. As I explained recently, the choice between correctness and deference is very important here: it is a choice between questions being resolved authoritatively by the Federal Court of Appeal or potentially being resolved differently by different panels of the Board. Given that the issue has been canvassed in the courts below and was fully argued, it is very disappointing that the Supreme Court did not offer some guidance.
In addition, the summary of the disagreement on the Federal Court of Appeal is unsatisfactory. McLachlin C.J. contrasts the decision in Febles, 2012 FCA 324, where a majority of judges, per Evans J.A., applied correctness (Stratas J.A., concurring, took a more nuanced view) with the decision in B010, where the Federal Court of Appeal unanimously applied reasonableness. But both Evans J.A. and Stratas J.A. were also on the panel in B010 and agreed with the reasons delivered there by Dawson J.A. Did Evans J.A. change his mind? Not at all.
As Dawson J.A. explained (2013 FCA 87, at para. 71): “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 [against the Smuggling of Migrants by Land, Sea and Air] anticipates individual states will enact different measures to fulfil the Protocol’s objectives (see: article 6, section 4). The uniformity concerns in Febles do not apply to the Protocol” (see also 2013 FCA 262, at para. 75, where Mainville J.A. agreed with this analysis). In short, not only do we have lingering disagreement about the standard of review of interpretations of international law generally, we also have an outstanding issue about the classification of different types of international instrument.
The statutory interpretation analysis that follows is essentially a de novo exercise designed to identify the best possible interpretation of the legislation, summarized at para. 76:
The tools of statutory interpretation — plain and grammatical meaning of the words; statutory and international contexts; and legislative intent — all point inexorably to the conclusion that s. 37(1)(b) applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. I conclude that a migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum-seekers in their collective flight to safety is not inadmissible under s. 37(1)(b).
This sort of reasonableness analysis is standard practice now for the Supreme Court of Canada. All that can be said in general terms is that it is further evidence that when an administrative decision-maker interprets a statutory provision, the range of reasonable outcomes will be quite narrow.
This content has been updated on December 4, 2015 at 11:59.