Anticipating the Supreme Court of Canada’s Administrative Law Trilogy I: The Cases
On Thursday, the Supreme Court of Canada will deliver its decisions in the long-awaited trilogy of cases heard last December: Vavilov v. Canada (Citizenship and Immigration) (Federal Court, 2015 FC 960; Federal Court of Appeal, 2017 FCA 132); Bell Canada v Canada (Attorney General) (Federal Court of Appeal, 2017 FCA 249); and National Football League v. Canada (Attorney General) (Federal Court of Appeal, 2017 FCA 249) (the last two were consolidated appeals from the Canadian Radio-television and Telecommunications Commission’s Broadcasting Order CRTC 2016-335). In this post, I will set out the general background to the cases and the particular issues the Supreme Court will have to address. In a subsequent post, I will describe the broader, systemic issues relating to the general principles of administrative law which are in play in these appeals.
Vavilov was born in Canada to Russian parents who were spies. Normally, individuals born in Canada are Canadian citizens: Citizenship Act, R.S.C. 1985, c. C-29, para. 3(1)(a). But there’s an exception for children born to “a diplomatic or consular officer or other representative or employee in Canada of a foreign government“: Citizenship Act, para. 3(2)(a). When Vavilov was 16, by which point he and his parents had moved to the United States, the family home was stormed by armed FBI agents, who arrested his parents. From Russia, Vavilov sought the renewal of his Canadian passport. After much procedural wrangling (summarized by Bell J. in the Federal Court at paras. 7-12), the Registrar of Citizenship refused to accede to Vavilov’s request. Indeed, relying on a report prepared by an analyst, the Registrar concluded that Vavilov’s parents had been “employees of a foreign government” at the time of his birth and thus revoked Vavilov’s certificate of Canadian citizenship. Vavilov sought judicial review: he was unsuccessful at first instance before convincing a majority of the Federal Court of Appeal to quash the Registrar’s decision.
There is no doubt that Vavilov’s secret agent parents were not diplomatic or consular officers. The issue is whether they were “other representatives or employees” of Russia. In the Federal Court, Bell J. concluded after a brief analysis that the interpretation of s. 3(2)(a) was a question of general importance across Canada, which attracted the correctness standard of review. In his view, Vavilov’s parents were “representatives or employees” at the time of Vavilov’s birth:
The fact the section refers to both employees and representatives is telling. My view is re-enforced by the French version which speaks even more broadly about those “représentant à un autre titre ou au service au Canada d’un gouvernement étranger”. The wording is clearly meant to cover individuals who are in Canada as agents of a foreign government, whatever their mandate. In this case, the task was to steal identities, obtain fraudulent citizenship and, with the benefit of that citizenship, further the fraud on one of our closest allies – the purpose of the fraud being to obtain intelligence and provide information to the Russian government. Anyone who moves to this country with the explicit goal of establishing a life to further a foreign intelligence operation, be it in this country or any other, is clearly doing so in the service of (French version), or as an employee or representative of, a foreign government (at para. 24)
On appeal, Stratas JA applied the reasonableness standard of review, explaining that it was appropriate to do so in view of a consistent line of recent Supreme Court authority (2017 FCA 132, at paras. 24-33). But, he noted, statutory interpretation issues arising in the immigration context have typically been subjected to exacting reasonableness review: “it has been a while since the Supreme Court has afforded a decision-maker in the immigration context much of a margin of appreciation on statutory interpretation issues” (at para. 37). Moreover, the Registar’s statutory interpretation analysis was sparse, such that it was “hard to give much deference to the decision” (at para. 39).
In Stratas JA’s view, the purpose of para. 3(2)(a) is to ensure that the citizenship bar “only to those employees who benefit from diplomatic privileges and immunities from civil and/or criminal law”, in line with Canada’s international law obligations and other domestic legislation (at para. 45. See also paras. 57-60). For Stratas JA, that the “additional element of diplomatic immunity” (at para. 56) is of critical importance is underscored by a contextual analysis — another component of para. 3(2) again emphasizes diplomatic immunity (at para. 61-62) — and also by the legislative history (at paras. 66-68). Finally, inasmuch as para. 3(2)(a) qualifies the jus soli principle (giving citizenship to anyone born in the territory of a nation state) it should be read narrowly (at paras. 69-71). Given these considerations, the “only reasonable” interpretation “available to the Registrar” was one which did not include Vavilov’s parents, who certainly did not have diplomatic immunity, within the scope of s. 3(2)(a).
Gleason JA dissented, on the basis that the text admits “of at least two rational interpretations: either the term ’employee’ means what it plainly states and includes all employees of a foreign government who have children in Canada or conversely, as urged by the appellant, the term ’employee’ includes only those employees of a foreign government who enjoy diplomatic immunity and who have children in Canada” (at para. 98). In her view, the relevant context, international obligations and legislative history did not mandate one interpretation or the other. It was thus “open to the Registrar to conclude as she did” (at para. 103).
Vavilov also claimed he had been treated procedurally unfairly by the Registrar. But neither the Federal Court nor Federal Court of Appeal saw any merit in this claim.
Bell Canada/National Football League
Bell Canada/National Football League is the latest installment of the long-running saga that is the CRTC’s “simultaneous substitution” regime. For some time, the starting point has been that Canadian broadcasters who are retransmitting feeds from foreign broadcasters are not allowed to alter those feeds in any way unless the Canadian broadcasters have permission to do so under the simultaneous substitution regime. If so, a Canadian television station can require a broadcaster to substitute a Canadian feed for the foreign feed.
From a consumer perspective, the most obvious result has been that for many years, during the Super Bowl half-time show, Canadian viewers have only had access to Canadian advertisements, not the high-profile American versions. From a commercial perspective, the result is that there is a larger advertising pie for the NFL (the copyright holder) and other actors to distribute, and a national platform for Canadian advertisers.
After a series of consultations stretching over several years, the CRTC proposed to maintain the simultaneous substitution regime but to exclude the Super Bowl, specifically. In its Order, it concluded that it was time “to recalibrate” the simultaneous substitution regime “to ensure that it is better balanced, and reflects the totality of the policy objectives of the [Broadcasting] Act” (at para. 28). As to potential negative impacts, the CRTC concluded:
Although simultaneous substitution has a recognized importance for the achievement of policy objectives set out in the Act, this must be balanced with other policy objectives, such as allowing subscribers to view complete (i.e., unaltered) programming – whether it be regional, national or international – offered by programming services. The potential negative advertising impacts have been recognized by continuing the simultaneous substitution regime as a whole. However, for the Super Bowl, these impacts are outweighed by other policy objectives and concerns (at para. 39).
The CRTC went on to reject the arguments that it did not have jurisdiction to target a specific programme, that the Order would interfere with vested rights and that the Order violated NFL’s copyright and/or Canada’s international trade obligations.
Decisions of the CRTC may be appealed, with leave, to the Federal Court of Appeal on a question of law or jurisdiction: Broadcasting Act, s. 31(2). Consistent with long-standing Supreme Court of Canada authority, however, the principles of judicial review apply to such appeals: where appropriate, the Federal Court of Appeal must defer to the CRTC unless the presumption of reasonableness review can be rebutted. Here, the Federal Court of Appeal applied reasonableness review on all issues and dismissed the appeals.
The jurisdictional issue turns on s. 9(1)(h) of the Broadcasting Act, which allows the CRTC to “require any licensee…to carry, on such terms and conditions as the Commission deems appropriate, programming services specified by the Commission”. Does the authority to impose requirements in relation to “programming services” include the authority to regulate a specific program, even though elsewhere in the Act (s. 26(2)) the Governor General in Council is given the authority to direct the broadcast of a specific progam? Near JA held that s. 9(1)(h) was broad enough to encompass the CRTC’s interpretation: “Although the legislative history demonstrates that the term ‘programming service’ was used to refer to channels in parliamentary debates, the appellants do not demonstrate that the legislator intended to exclude programs from its meaning” (2017 FCA 249, at para. 18).
As to retrospectivity and retroactivity, Near JA did not perceive any interference with vested contractual rights:
Canada’s broadcasting regime does not confer rights but benefits. Bell only ever had the privilege to request simultaneous substitution, a privilege which flows from the Broadcasting Act and regulations. Even if Bell wanted to, it could never have guaranteed that it would engage in simultaneous substitution (at para. 34).
On the copyright point, Near JA applied the correctness standard of review, on the basis that the Copyright Act is outside the scope of the CRTC’s expertise. But he found no conflict between the CRTC’s order and the various rights invoked under the Copyright Act.
With the background thoroughly laid out, I will turn in my next post to the broader, systemic issues raised by these cases.
This content has been updated on December 18, 2019 at 03:21.