CIVE 463 Lecture Notes - Lecture 17: Khosa, Grant Baker, Backsliding
25 May 2018
School
Department
Course
Professor
Class 17/18: Discretion con’t
No reweighing? Backsliding from Baker…
Discretion
Continuing question of discretion
- Why are we looking at it now since we looked at it under Dunsmuir?
- Answer: big picture division of substantial review that most court operate with
(notwithstanding HD) = most judges will review discretion as something different than
the review of a decision of an industry regarding stat schemes for employees for example
(CUPE) = cases of interpretation and definition of terms
- VS discretionary decisions = cases like Baker = what is the scope of the discretion = what
is a lawful exercise of discretionary power
- So JR of discretion = analogized as abuse of right (droit civil)
o Ex. Roncarelli = broad stat discretion given to the head of the alcohol committee
= which on its face gives him the right to cancel a liquor permit at any time
▪ But the court said that the discretion has to follow proper purposes = and
not for improper purposes
o So it is true that the liquor commissioner had the legal authority to cancel a permit
any time on the basis of the statue but the court says that even if the commissioner
has a legal right to do that = the right cannot be used in an unreasonable way
(abusive way)
o Baker: minister had discretion to grant Baker relief from deportation order if
Minister was convinced that there were H& C grounds. The scope of discretion
did not extent to make decision on the basis of prejudice and stereotype. And
interest of the child had to be taken into account. SCC could intervene
- Discretion is understood as a different kind of fish - even if it is brought in substantive
review - and poses a problem to judges conducting review because in tension with the
RoL (like cases must receive like treatment)
➔ discretion is never unfettered - never that pure discretion - always must be exercise with
public (most of the time statutory) purposes and must take into account the full context, ex. in
Baker, international treaties like Child Convention.
- But are judges becoming mini legislators in Baker because there seems to be a trend close
to presumptive, i.e. if you have kids, and you have no criminality or anything else, in
other words if there are no red flags of inadmissibility present, it seems that a
presumption arises that the decision maker has to allow you to stay in Canada for the sake
of your children.
- The legality of the decision: when making decisions, legal principles and the merit of the
decision should be considered. Admin decision-makers should take into account all
relevant elements and not irrelevant consideration (ex. religion), but once they have all
elements, the weighing of the elements is up to the admin decision-makers as per the
legislature intent.
Cases
• Suresh: Baker was never intended to say there were reweighing - No reweighing
find more resources at oneclass.com
find more resources at oneclass.com
• Khosa: “no reweighing” vs Fish J
Backsliding from the backslide!
• Kanthasamy: reweighing?
o deals with the equivalent provision that it dealt in Baker. The provision at stake
incorporates in it that if there are children, the decision maker must take the best
interest of the children into account - codification of Baker ruling.
o Is it the codification that makes the different or is it only Abella J’s lead that leads
to the result?
Discussion
Backsliding from Baker. Suresh and Khosa
Question 1
• Éthere is a link to be made between the majority’s reasoning in Baker and Fish’ dissent in
Khosa. In Baker, the majority found that the Immigration Officer’s failure to “give
serious weight and consideration to the interests of the children” constituted an
unreasonable decision. In Khosa, Fish J found that the Immigration Appeal Division’s
failure to seriously consider factors beyond Khosa’s denial that he was street-racing
constituted an unreasonable decision. However, although Baker was released 10 yrs prior
to Khosa, the Baker decision was backed by a majority of the Court and the dissent in
Khosa was limited to one judge.
o a) how can you explain this seeming discrepancy - why do you think the majority
in Baker had no difficulty in playing the “failure to consider a relevant factor”
card but the Court was unwilling to do the same in Khosa?
o b) do you think that the facts of a case (or, the level of sympathy produced by the
facts) play a role in the outcome, such that the discrepancy between the majority
in Baker and the majority in Khosa is best explained by “end-driven reasoning,
through which the reviewing court reaches the conclusion it thinks is right” (505,
pink book)? (you may also consider Suresh)
• Answer
o a) the parties in the cases make a difference
Question 2
• In Baker, the Immigration Officer’s notes clearly indicate that the Officer did consider
Baker’s children as the “only” humanitarian and compassionate consideration (para 5). In
Khosa, Fish J (in the dissent) acknowledges that certain other relevant factors weren’t
given much weight. Thus, the issue in both cases seems to be less of a matter of “failure
to consider” and more of an issue of a “failure to justify”. Clearly, however, the majority
in Khosa did not agree: the Khosa majority held that the IAD’s reasoning process and
outcomes “fit comfortably with the principles of justification, transparency, and
intelligibility” (Khosa, para 59)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Vs discretionary decisions = cases like baker = what is the scope of the discretion = what is a lawful exercise of discretionary power. So jr of discretion = analogized as abuse of right (droit civil: ex. Roncarelli = broad stat discretion given to the head of the alcohol committee. Minister was convinced that there were h& c grounds. The scope of discretion did not extent to make decision on the basis of prejudice and stereotype. And interest of the child had to be taken into account. Discretion is understood as a different kind of fish - even if it is brought in substantive review - and poses a problem to judges conducting review because in tension with the. Discretion is never unfettered - never that pure discretion - always must be exercise with public (most of the time statutory) purposes and must take into account the full context, ex. in.
