Creating Confusion from the Ambiguous: Agraira v Canada (Public Safety and Emergency Preparedness)
Agraira v Canada (Public Safety and Emergency Preparedness) 2013 SCC 36 asked the Supreme Court of Canada (SCC) to determine whether the Minister of Public Safety and Emergency Preparedness (“Minister”)’s decision to deny ministerial relief to an alleged terrorist should be remitted to the administrative body. Yet, in trying to make sense of the Minister’s decision, LeBel J, representing the Court, did not explain his own rationale, and, thereby, made the current state of the law of judicial review ambiguous. This case comment will briefly summarize the judicial history and then explain how LeBel J created confusion by omitting to explain why he could infer one of the most crucial components of the Minister’s reasoning.
Background and Judicial History
Muhsen Ahmed Ramadan Agraira attempted to get permanent residence status in Canada. In 2002, his application was denied pursuant to s.34(1)(f) of the Immigration and Refugee Protection Act (IRPA) because he was a member of the Libyan National Salvation Front (LNSF), which the Citizenship and Immigration Canada (CIC) classified as a terrorist organization. He applied for ministerial relief under s.34(2) of the IRPA, but the Minister denied his application in 2009 because it was not in Canada’s national interest to admit an individual with sustained contact with a terrorist organization.
As a result, Agraira turned to the Federal Court of Canada in 2009. The Federal Court allowed the appeal for judicial review. Mosley J, representing the court, held that reasonableness was the appropriate standard of review, but that the Minister’s reasoning was incomplete because the Minister did not analyze the five factors in Appendix D of the Inland Processing Manual Chapter 10 (“the Guidelines”), which, according to Abdella v Canada (Public Safety and Emergency Preparedness) 2009 FC 1199, were required for s.34(2) of the IRPA relief.
The Federal Court of Appeal reversed the decision in 2011, dismissing the application for judicial review. Pelletier JA, for the unanimous court, held that the term “national interest” was a term of law and should, therefore, be analyzed under the correctness standard of review. According to Pelletier JA, “national interest” referred to public safety and national security. Pelletier JA also held that the Minister’s exercise of discretion was reasonable. The Minister did not need to analyze the five factors in the Guidelines because the Guidelines were not law, and his decision was reasonable given that Agraira lacked credibility, presumably still had connections with the LNSF, and, therefore, did not satisfy the exceptional relief under s.34(2) of the IRPA.
Supreme Court of Canada Decision
LeBel J, representing the Court, dismissed the appeal. LeBel J held that reasonableness was the appropriate level of deference based on the established jurisprudence concerning s.34(2) of the IRPA, as required under Dunsmuir v New Brunswick 2008 SCC 9.
LeBel J applied Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association 2011 SCC 61 to infer that the Minister interpreted “national interest” to predominantly encompass national security and public safety and, to a limited extent, other important considerations outlined in the Guidelines or analogous considerations. LeBel J based this decision on the fact that the Minister used the term in his ultimate decision and that the Minister reviewed and considered, inter alia, the Guidelines. This inference allowed LeBel J to conclude that the Minister’s reasons were justifiable, transparent and intelligible such that the court could clearly understand why the Minister refused to grant discretionary relief.
According to LeBel J, the Minister’s decision also fell within the range of acceptable outcomes defensible under fact and law, as required from Dunsmuir, because the Minister considered and weighed all of the evidence provided.
Additionally, LeBel held that the Minister carried out his duties of professional fairness and fulfilled Agraira’s legitimate expectations because the Guidelines thoroughly explained the application process.
LeBel J was able to arrive at the decision because he inferred the Minister’s interpretation. Yet, despite this crucial differentiating factor from the lower courts’ judgments, LeBel J did not explain why drawing an inference was appropriate. Consequently, the judgment leaves us guessing at the state of the law of judicial review.
Is LeBel J directly applying the reasoning in Alberta Teachers’ Association at para 54, which states that courts may “consider the reasons that could be offered for the decision when conducting a reasonableness review” when there is no duty to give reasons or when only limited reasons are required? If this is the case, then it would mean that the Minister did not need to provide any (or just a limited amount of) reasons under s.34(2) of the IRPA. Pelletier JA’s judgment in which he determined that the Minister was not required to follow the Guidelines brings credence to this possibility because the requirement to provide reasons was in chapter 10 of the Guidelines. However, neither the Federal Court of Appeal’s nor the SCC’s judgment explicitly said that the Minister was not required to provide reasons. In fact, the courts’ focus on whether the Minister provided enough reasons to justify the decision suggests that there was an implicit assumption that the Minister had to provide reasons. Additionally, if s.34(2) of the IRPA did not require reasons, then it would seem as though the Court would have disregarded David Mullan’s and others’ concerns that immigration issues require extensive judicial scrutiny (David Mullan, “Deference from Baker to Suresh and Beyond – Interpreting the Conflicting Signals” in David Dyzenhaus, ed. The Unity of Public Law (Oxford: Hard Publishing, 2004) at 22), concerns that were raised after the Court took a deferential approach in Suresh v Canada 2002 SCC 1.
If, though, the Minister does not need to provide reasons for s.34(2) of the IRPA, then the potential impact will be limited. As of June 2013, Parliament repealed s.34(2) of the IRPA and replaced it with the Faster Removal of Foreign Criminals Act, a more explicit statement that the Minister will only grant relief in extreme cases, and a new s.42.1(3) of the IRPA, which explicitly outlines the scope of the Minister’s analysis. This means that the courts will not encounter a new s.34(2) of the IRPA judicial review case. Lebel J’s decision will, consequently, only influence future cases indirectly. Courts may draw on Agraira only to argue that the legislation in question should also not need reasons.
Alternatively, the lack of clarification could mean that courts have unlimited inference powers in judicial review cases. If this is the case, then LeBel J would have changed the law such that courts can now infer an administrative body’s reasoning whenever the reasoning is not explicit. This option would give courts more flexibility because they would no longer need to remit a decision to the administrative body when the reasoning is not clear or ask the body to clarify its decision. Consequently, it would make the process more expedient and cheaper, which, according to Alberta Teachers’ Association (at para 55), are two of the primary reasons for creating specialized administrative bodies in the first place. It could also promote deference to the administrative bodies because it would bring respect for the legislature’s decision to bestow upon administrative bodies specific powers and obligations that require particular experiences and expertise not found in the courtrooms, as suggested in Dunsmuir (at para 49).
However, expanding the courts’ powers in such a dramatic way conflicts with one of the fundamental reasons for limiting the power to infer. It may, as the court in Alberta Teachers’ Association warns, dilute the importance of reasons and, perhaps, even encourage the courts to treat the administrative body’s reasons as a “carte blanche” to reformulate the reasoning as they see fit because courts would not be as limited to the explicit reasons. Implicit in this decision to limit the circumstances under which inferences are appropriate, then, is a concern that a more lenient stand, like the one LeBel J’s judgment appears to support, would begin to unravel judicial review as a whole. If courts can invoke the inference power at any time, then, what will ensure that administrative bodies continue to provide reasons? Without reasons, how will the courts ensure that the administrative bodies stay within the limits of their statutory power? How will the courts uphold the rule of law?
It is doubtful that LeBel J meant the jeopardize the fate of judicial review, but not explaining why an inference is appropriate in this case opens Pandora’s box to these concerns.
It will, consequently, be interesting to see which path the Court takes in the next judicial review case. Will it retreat to the more restrictive standard in Alberta Teachers’ Association? Or, will it take a more expansive approach and, thereby, invoke the possibility that administrative reasoning will go by the wayside?