Lecture 17

4. The Nature of the Problem. Q of Law or Fact?

 even pure questions of law can be granted a extensive degree of deference in which other
factors of the pragmatic and purposeful analysis recommend that such deference is the
legislative aim. But in which different factors leave that intention ambiguous, courts ought to be
less deferential of choices which can be natural determinations of law.
 questions of law (low deference), truth (highest deference) or mixed regulation and fact (higher)
= all rebuttable
1. The courtroom is calling at the precise nature of the difficulty that is concern to the judicial
evaluate;
2. If the tribunal’s functioning is in general reality finding, then we have a higher wellknown of
deference;
3. Similarlily there's a presumption that questions of law are concern to less deference because
courts are extra experienced in managing questions of regulation;
4. four. Each of those presumptions can be rebutted by weighing all 4 factors;

 Judge notes that this is the first time the SCC has had the opp to recall the std of assessment
over selections of the Immigration and Refugee Board. In maximum instances a patent
unreasonableness or “perverse and capricious” std is implemented. Those cases worried
evaluation of findings on credibility of witnesses furnished by way of Board. He notes the
decision of Sivasamboo v. Canada through a decrease court docket that determined that the
patent unreasonableness standard of assessment need to observe to selections of the
Immigration and Refugee Board.

 He disagrees and says the better preferred of evaluation is correctness. Key to the legislative
aim as to the std of evaluation is the use of the phrases “a severe question of fashionable
importance”. General significance, ie its applicability to destiny instances, warrants evaluate
with the aid of a court docket of justice. Would legislature hve provided for an outstanding
appeal to coart of attraction on questions of “general importance” however then required that
no matter the “popular importance” of the query, the court accepts the choices of the Board
which are incorrect in law, even honestly incorrect in law, but not patently unreasonable? Only
way s83(1) can be given its explicitly argued scope is for the Court of Appeal as a way to
replacement its decision in for the Board.
  Moreover, Board appears to experience no relative knowledge inside the count of regulation
that is difficulty of judicial review right here. SCC has ruled no deference ought to be shown in
human rights tribunals on general questions of law.

 Board’s know-how in matters referring to human rights is less advanced than that of human
rights tribunals. Board’s knowledge is comparing whether or not standards for refugee
popularity have been met and assessing hazard of persecution confronted by way of applicant if
back to u . S . A . Of foundation. Relationship of Board’s knowledge and provision is question is
faraway - no longer professionals with admire to the worldwide regulation and international
conventions. Only 10% of Board wishes to be attorneys below statute and no req that there be
a attorney on each panel.

 Board isn't always characterised as acting a handling or supervisory function as changed into
discovered in Southam. Not resp for policy evolution. Article 1F’s motive is not management of
flows of humans however human rights safety. Deals with one case, one person; it isn't always
listening to proof or undertaking an adjudicating function for a polycentric assessment;

Also cited absence of privative clause.

Held that correctness is std of overview.

Application of the correctness general:

 Held that Board erred in dismissing the objects and functions of the UN Convention Relating to
the Status of Refugees and in according no weight to the warning signs furnished within the
travaux préparatoires (submissions of person delegations while negotiating a treaty).

 Starting factor of interpretation exercising is to outline the reason of the Convention as an entire
and second, the motive and region of Article 1F(c) inside that scheme.
  Crucial is the manner in which the logic of the exclusion in Article 1F commonly and IF(c) mainly
is related to the reason of the Convention as an entire. Rationale is that individuals who are
responsible for the persecution which creates refugees must no longer revel in the benefits of
the Convention designed to guard those refugees.

 With this in thoughts he considers what acts are opposite to the purposes and ideas of the
United Nations. He says drug trafficking isn't always considered contrary to the purposes and
ideas of the United Nations.

Abuse of discretion as a ground of Judicial Review

Baker v Minister of Citizenship & Immigration (1999)

This is asking at the problem of abuse of discretion (focus on procedural equity is about out earlier).

Facts:

o Ms Baker, a citizen of Jamaica, entered Canada on a tourist allow, however overstayed

illegally for decades. Had four kids here (so they're Canadian residents). Due to
recognized despair and schizophrenia, she went on welfare and a couple of children
went to father, other 2 to foster care, but she took these 2 again whilst recovered.
o When determined to be residing in Canada illegally she is ordered to be deported under
the Immigration Act. Her closing inn below the Act is utility to the Minister to be
allowed to live in Canada on “humanitarian and compassionate grounds”. Her written
utility includes medical evidence that if deported she can in all likelihood turn out to be
ill again without a remedy, and that she is sole caregiver for two kids and carefully
connected with the other 2 (so all children will go through if she is deported).
o Application reviewed by using junior Immigration Officer and recommends she not be
allowed to stay on humanitarian and compassionate grounds. Recommendation sent to
senior Immigration Officer who concurs, so software denied (without a oral listening to
and first of all no reasons given).
o When Baker’s counsel asks for reasons, senior Immigration Officer sends notes from
junior Immigration Officer. Notes appear inflammatory e.G. Capitalized her general
wide variety of kids (4 in Canada, plus four in Jamaica), says she will be a “first-rate
pressure on our social welfare device”, say that truth she remains in Canada is an
 “indictment of our device”, and “Canada can now not find the money for this type of
generosity”, recommends refusal however warns of “potential for damaging publicity”.

Baker challenges deportation in court docket, and deportation stayed until concluded. Note no longer
a Charter s.7 case, instead dealt with on commonplace regulation PF grounds.

Baker argued that:

1. The usual of evaluate to be implemented to the decision ought to be correctness;

2. The concepts of administrative law require the discretion to be exercised in accordance with the
Convention ;
3. three. The Minister ought to practice excellent pursuits of the child as a primary consideration in
humanitarian and compassionate decisions.

 Court referred to that regulation and regulations delegate sizeable discretion to the Minster in
determining whether or not an exemption should be granted on humanitarian and
compassionate issues.

 What technique to judicial overview of administrative discretion ought to be applied

contemplating the pragmatic and practical technique articulated in the courts?

 Rule has been that choices labeled as discretionary might also only be reviewed on confined
grounds such as the horrific faith of decision-makers, the workout of discretion for an incorrect
purpose, and using irrelevant considerations. A preferred doctrine of “unreasonableness” has
every so often been carried out to discretionary selections. These doctrines comprise crucial
thoughts:

 Discretionary choices, like several different administrative decisions, ought to be made in the
bounds of the jurisdiction conferred by using the statute,

 However that full-size deference will be given to choice-makers via courts in reviewing the
exercise of that discretion and figuring out the scope of the decision-maker’s jurisdiction
  These doctrines recognize that it's miles the aim of a legislature, while using statutory language
that confers broad selections on administrative corporations, that courts should no longer
lightly intrude with such choices, and ought to provide large appreciate to decision-makers
when reviewing the manner in which discretion was exercised. However, discretion have to
nevertheless be exercised in a manner this is within an inexpensive interpretation of the margin
of manoeuvre pondered with the aid of the legislature, in accordance with the concepts of the
guideline of law (Roncarelli v. Duplessis, [1959] S.C.R. 121), in step with trendy concepts of
administrative regulation governing the workout of discretion, and regular with the Canadian
Charter of Rights and Freedoms.

 Applied the pragmatic and functional test. Factors to recall include Expertise of tribunal, Nature
of choice being made, Language of provision and surrounding legislation, Polycentric nature?,
Amount of desire left by means of legislature to administrative decisionmaker.

Application of the elements:

1. Presence or absence of privative clause

 No privative clause but judicial overview cant begin without go away of Federal Court..
Certification of “a serious query of popular significance” required pursuant to s83(1). Existence
of this provision approach lower stage of deference on issues related to the licensed query
(Pushpanathan)

2. Expertise of decisionmaker

In this situation it is the Minister – that could be a element in favour of deference.

3. Purpose of the supply and Act

 This decision includes big choice on part of minister in figuring out whether or not H&C
considerations warrant exemption from reqs of the Act. Decsion entails making use of relatively
“open textured” felony standards - that may be a factor in favour of deference.
  Also, the reason of the provision in question is to exempt people from reqs of Act or Regs- that
may be a issue in favour of deference. But then again, this relates without delay to rights and
interests of an character when it comes to the government rather than balancing pursuits of diff
constituencies or mediating between them.

Four. Nature of the problem in query (regulation/reality/aggregate)?

 Decision to furnish an H&C exemption entails a massive appreciation of the data of an people
case. Highly discretionary and truth based totally nature - that is a thing in favour of deference.

 Conclusion – large deference ought to receive to immigration officers exercising the powers
conferred through the law, given reality-precise nature of the inquiry, its position in the
statutory scheme as an exception, the reality the selection maker is the Minister and the
sizeable discretion evidenced by using the statutory language. BUT absence of privative clause,
explicit contemplation of judicial overview in sure circs and the character rather than polycentric
nature of the selection additionally endorse the std have to now not be as little as “patent
unreasonableness”.

Finds the precise std of overview is reasonableness simpliciter.

 Is the choice unreasonable? An unreasonable selection is one which, within the predominant,
isn't always supported with the aid of any motives which could stand up to a incredibly probing
exam. Accordingly a court reviewing a conclusion of the reasonableness std must appearance to
look whether any motives guide it. (Iacobucci in Southam)

 Notes of Officer Lorenz – who positioned the reality of FOUR CHILDREN IN JAMAICA and
ANOTHER FOUR BORN HERE in caps. These display that the method taken to the childrens’
interests changed into unreasonable. He changed into dismissive of their interests. Failure to
provide extreme weight and consideration to hobby of the youngsters constitutes and
unreasonable workout of the discretion. She looked at International Law as a part of attaining
this conclusion.
Iacobucci disagreed with searching at International Law as it's far of no impact until included into home
regulation.

NOTES

o Baker defined the concept of discretion and that means: refers to the selections where
the regulation does now not dictate the particular final results or wherein decision
makers are given a preference of options, which can be commonly in the statutory
imposed obstacles;
o The court docket in Baker showed that judicial overview of the discretionary choice
making should follow the pragmatic and purposeful approach; and even as recognizing
that the minister of immigration became given extensive range below the statute with
reference to humanitarian and compassionate instances, L’H-D J. Nonetheless held that
discretion must be exercised in a manner that is in the reasonable interpretation of the
margin of manoeuvre pondered via the legislature; discretion need to be exercised
according with the principles of the guideline of regulation and in step with standard
concepts of the admin law governing the exercise of discretion and in accordance with
Constitution and the Charter;

Implications:

o 1. Spectrum of requirements on judicial overview now being implemented to abuse of

discretion
o 2. Seems to extend judicial evaluate to the substance of a discretionary decision

a. Standard of Correctness

 What is an incorrect discretionary choice? A choice that does not have goal standards (a
choice of desire). This doesn’t genuinely work. Courts do no longer rely upon the correctness
popular on overview of discretionary selections – will handiest review on reasonable simpliciter
or patently unreasonable widespread.

B. Suresh.

 SCC observed that the presence of a Ministerial choice-maker ends in extreme

deference (because of understanding and polycentric concerns, discretion) and fashionable is
patently unreasonable
 o Patently reasonable defined as: a choice made arbitrarily, or in awful religion that
cannot be supported by way of the proof or where the Minister did not recollect the
right statistics
 Side-word:
o Suresh received because of the lack of data he turned into given
 Court observed that the truth that the facts was touchy (he changed into an accused terrorist) is
a consideration but does not imply Suresh isn't always entitled to know the case earlier than him

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Roncarelli v. Duplessis, [1959]

 Set out precept that it's far for the courts to ensure that the organisation does not use its
electricity for a few reason not legal via the legislature or base its decision on a variety of factors
which can be wider or narrower than those supposed by the legislature to tell the exercise of
the discretion.

 In this situation the Premier D ordered liquor licensing commission to revoke R’s licence because
he published bail bonds for Jehovah’s Witnesses.

 “In public law of this type there may be no such factor as absolute and untrammeled
discretion… Discretion always implies properly faith in discharging public obligation…”

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 Courts commonly assumed that it became their feature on an utility for assessment to decide
independently the scope of the organisation’s statutory discretion – whether or not a
component considered through the agency become applicable or a purpose pursued changed
into authorized is reviewable by a std of correctness not reasonableness.

 But after Baker – in the realm of failing to take account of relevant factors, taking account of
irrelevant elements even appearing for unsuitable functions, one ought to now ask whether the
 std of assessment is that of correctness or reasonableness. Baker and Dunsmuir apprehend as a
minimum the occasional need for deference to discretionary procedural selections.

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Suresh v. Canada [2002] SCC

Facts:

o Minister had exercised ministerial discretion and decided to deport Suresh, an alleged
member of the Sri Lankan Tamils (a terrorist organization), on grounds that he turned
into a danger to the safety of Canada.
o But Suresh alleged that there has been a opportunity that he’d be in serious jeopardy of
torture if despatched home.
 Decision
o To deport a refugee to face a sizable hazard of torture would typically violate s.7 of the
Charter. The Minister have to exercise her discretion to deport consequently – which
she did.

Court noted there were 4 kinds of problems:

(1) constitutional evaluate of the provisions of Immigration Act

(2) whether Suresh’s presence in Canada constitutes a hazard to national safety
2. (three) whether or not Suresh faces substantial chance of torture if returned to Sri Lanka
(1) whether methods utilized by Minister below the Act had been adequate to shield
Suresh’s constitutional rights

(2) Constitutional issue is whether it'd shock the Canadian moral sense to deport Suresh
once a massive risk of torture has been set up. This is wherein s7 of Charter is engaged.

Since ordering a brand new hearing, not required to review Minister’s decisions on whether or not
Suresh’s presence in Canada constitutes a danger to national safety or whether Suresh faces huge
hazard of torture if lower back to Sri Lanka, but provide feedback to assist courts in future ministerial
assessment.
(2) Did Suresh’s presence in Canada constitute a danger to national protection?

• Deference have to be accorded, so overview of selection on popular of patent unreasonableness

(i.E. Arbitrary or terrible faith, can’t be supported on the proof or didn't take into account applicable
factors)

• The courtroom should not re-weigh the elements or intrude simply bc it'd have come to a
unique end.

• This general of deference stems from language of the Immigration Act.

• All four factors point to deference

1) Parl supposed constrained proper of attraction (no privative clause, but want go away to
attraction to FCA)

2) Expertise of Minister and get admission to to big information on natl protection – favours
deference.

Three) Purpose of regulation to allow a humanitarian balance of various pastimes – favours deference

4) Nature of the case: inquiry is quite reality-primarily based and contextual – favours deference.

• Question pertains to human rights and engages essential hobbies, however Court reveals that
deferential wellknown of ministerial evaluation does not save you human rights. Problems from being
absolutely addressed – so long as proper procedural safeguards are in place and provided choices meet
the constitutional req’s of Charter.

• It is the Minister who was obliged to offer right weight to applicable factors. Baker does no
longer allow evaluation of weighing system, simplest assessment of whether or not all patently relevant
factors had been considered.

• If Minister has considered the proper elements, the court docket must uphold her choice. It
cannot set it apart even if it would have weighed them differently or reached any other conclusion.

(3) Did Suresh face vast threat of torture if returned to Sri Lanka?

• Question is in massive part a fact-driven inquiry. It considers some of issues that are in large part
outside the area of expertise of reviewing courts (human rights file in domestic state, personal chance
confronted by means of claimant, any assurances that claimant wont be tortured and their worth, ability
of kingdom to govern army) and own negligible felony dimension. They are owed deference.
• Court may not reweigh elements considered via Minister, however may also intrude if decision
isn't always supported via proof or fails to take into account the precise elements (patent
unreasonableness).

• Decision no longer patently unreasonable, so upheld.

Notes

• Court held that ordering deportation despite extreme opportunity of torture did now not violate
standards of fundamental justice. It changed into justifiable as an super measure.

• But seeing that Suresh had raised a prima facie threat of torture, he was entitled to higher
degree of procedural equity than he received. So the matter was remitted.