In Minister of Citizenship and Immigration v. Vavilov [2017] FCA 132, we have mom and dad, Russian spies, who had once spy around in Canada, and while doing so, happened to have a Canadian-born baby, Alexander. They went back to Russia. They applied for Alexander’s citizenship and of course received it, Alexander having been born in Canada.
So isn’t it beyond question that Alexander is a citizen?
You know what happens next:
Years later, while spying in the United States, mom and dad are caught and deported from the United States. Why should this have anything to do with 16 year old Alexander Foley, their son, living in the United States? (para 4)
The Canadian Ministry of Citizenship and Immigration just had to get involved, hunt for Russians and whatnot. The Ministry followed the mathematical logic of entry into Canada: either mom and dad had lawfully entered Canada (all those years earlier) and were lawfully in Canada (which spies using false identities were apparently not); alternatively, they would have had to be ‘employees’ of a foreign government. (para 5)
There is thus a perfectly reasonable interpretation of the Citizenship Act which, in effect, opens citizenship only to the children of parents lawfully in Canada. This ‘employee’ designation upon spy-mom and spy-dad would make Alexander’s citizenship revocable?
This above bureaucrat-interpretation is not necessarily the correct interpretation. But who cares about correctness anymore. The quasi-judicial decision-maker only has to have a reasonable interpretation of his ‘home’ statute. (para 24,27). Remember that wildly-praised piece of McLaughlin-ism.(Dunsmuir)
Poor Alexander was so old-fashioned, telling the court of appeal that the standard of review was ‘correctness’. (para 23) We should all be deported for such yesterday-legal views.
Fortunately for Alexander, judges are a stubborn lot, not yet fully euthanized into the necessities of deferring to ‘home’ statute decision-makers. This Vavilov Majority (FCA), rallying to the old music, had the temerity to go behind the ‘home’ decision-maker’s assessment of his own statute and narrowly, rather than broadly, construe the meaning of ‘employee’ so as to exempt spies.
It is of course lost upon ‘home’ statute decision-makers that narrowness of construction should apply wherever broad construction would destroy a child’s existence. The ‘rule of law’ must be blind to such sentimentality. And is, in the hands of every ‘home’ statute decision-maker.
The FCA Majority went further (had to go further) and said that it was the only reasonable interpretation. (para 79). This sounds so pleasingly like ‘correctness’, that I looked forward with glee to the spectacle of a good spanking from the SCC who would simply have to apply party-discipline to maintain the ‘home’ statute orthodoxy.
The bureaucrat reasoned like this:
Because spies are not legally in Canada except as ‘employees’ of Russia, and because an employee’s child (born in Canada) cannot become a citizen, therefore the Canadian citizenship that Alexander received years after mom and dad had returned to Russia, well that citizenship needs to be revoked and Alexander, (who never lived in Russia), well – hell is waiting.
Why Dicey hated the administrative state
Dicey (chapter 12) would have pointed out the difference between an ordinary court-room proceeding and what passed for quasi-judicial decision-making in Vavilov’s case. For instance, Alexander was given a right to merely make written submissions and then the quasi-judicial decision-maker issued no reasons. (para 49).
Gleason J.A. at the Federal Court of Appeal inadvertently exemplifies precisely what Dicey despised in bureaucrat-decision-makers. The implicit approach of the Vavilov decision-maker is this:
Is there is any interpretation of a statute which allows for the removal of this citizenship. Can the definition of ‘employee’ be such as to include ‘spies’ under any reasonable reading? If so, then, that is the ‘home’ interpretation and that is what ‘rule of law’ means as far as the department is concerned.
my comment: Having worked in the federal government for a long time, there is nothing wrong, and everything right, with this fierce defence of the realm by the administrative state. It is the SCC’s naivety in surrendering ‘home’ statute advantage to Humphrey that is the risible thing in this story.
Back to the action
The Federal Court of Appeal majority scrambled to salvage sensibility (para 36) from the consequences of having spent decades immunizing the administrative state from just the sort of review now underway. To repeat: the problem for the FCA was that if there is even one, of several, reasonable interpretations that supports the quasi-judicial decision-maker – that is the end of the debate. Bureaucrats win – citizen loses.
So the majority had to go all-in, and say that the administrative decision-maker was ‘unreasonable’ (in analogizing Russian spies to employees of Russia). After Dunsmuir, that is the only way to get an actual judge, with judicial sensibilities, into such a life-saving decision.
(p.s. I’m telling this story because there is a happy ending at the SCC)
