CIVE 463 Lecture Notes - Lecture 16: Statutory Interpretation, A. V. Dicey, Patently Unreasonable
25 May 2018
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Class 16: Review of discretion
Grants of discretion, and Baker review of discretion on a reasonableness standard.
Baker
• Its significance in the CML world and what it was responding to
o Took Canadian admin law in different direction, esp in terms of review of
discretionary decision.
• Fats: Deportation order against Mme Baker. Humanitarian and compassionate grounds
because she had 4 Canadian born children. SCC: notes were so bad - decision-maker
made a decision under an apprehension of bias. The court also did lot more - why? It
could have stopped at the first step (procedure). It wrote in a sense obiter.
• 2 approaches:
o Until Baker, pragmatic and functional approach had been reserved to review
decision pending on statutory interpretation (CUPE, Pushpanathan, Mossop)
o VS. Court’s view of discretionary decision = Diceyan view: either
interventionism (jurisdictional review on correctness standard) or abdication → so
you do not look at contextual factors then
Novelties in Baker
• 1) unified approach (discretionary & interpretation).
o Distinction between discretionary decisions vs. statutory interpretation should not
substantiate the argument of 2 approaches anymore. Practical point: at the time
Baker was decided, there were still 3 standards of review. And P&F approach
would not have been used in Baker court would have used patent
unreasonableness (so P&F approach would not be applied).
o In Baker, reasonableness simpliciter is the SoR and more searching of review
should be conducted (Southam): test - decision and reasons should be able to
stand to a somewhat probing evaluation.
o L’H-D wanted to conduct more inquisitive search of the reasons to refuse H&C
application (mercy) → defiance of Dicey paradigm by J l’H-D.
• 2) How do we look deeper? Baker framework - 5 factors:
o 1. boundaries of the statute
▪ (framework in place before like in Roncarelli: is the power exercised
through the purpose of the statute, was the discretion feathered by
someone else, did the decision maker consider relevant consideration from
the standpoint of the statute),
o 2. principle of RoL,
o 3. principles of administrative law (not clear the distinction between both above),
o 4. decision maker have to take into consideration fundamental values of Canadian
society (where to find them?): one place one might look: Charter principles, ex.
paying due respect to the due interest of children.
o 5. Charter principles
Baker in context
• went to the SCC from the Federal Court of appeal. The argument used by Baker’s
lawyer: because Canada had signed Convention on the right of the child which provided
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in admin proceedings, best interest of children had to be shown importance, minister
should have take into account these interests. That was the argument at trial and court of
appeal courts.
• Rejected up to the Federal Court of Appeal because the Convention on the right of
children, although ratified by executive,
o had no effect in Canada - because not implemented in Canadian law by law
making institution → appeal to dualist jurisdiction view IL and national law as 2
levels.
o Used that view as well to resist the attempt of Baker to argue that Canada should
adopt the position similar to Australia in 1995, Teoh, migrant in Australia -
subject to deportation - has children. In Theo, the argument of legitimate
expectation (that executive live up to its commitment of signing the Convention)
succeeded.
• SCC in Baker did not want to use the tool of legitimate expectation. In Baker, L’H-D
says that legitimate expectations are a thing but not necessary to refer to it, since the
same protections are available at CML.
• However, the SCC did look at IL, i.e. if the Convention had bearing. SCC: IL is relevant
here. It is because IL participates in the legal context that we have to assume exist when
interpreting parliament legislation. That gives rise to a principle: presumption of
conformity = whenever it is possible to interpret the exercise of discretionary power or a
statutory term consistent with IL, we do. Based on the presumption that Parliament
enacts legislation in manner consistent rather than inconsistent with IL, unless
parliament uses express language for the opposite.
• J L’H-D: Best interest of Children present in IL, evidenced in the Act’s objectives as
well as in the Ministry Guidelines
• Judicial rule itself - can just care about the legality of the case. Legality v. Merits
After Baker, in Suresh and Cosa - real backslide: has the decision maker taken into account
relevant consideration? If yes, judicial scrutiny ends - because the weight to assign to elements is
a matter of admin decision-makers not the court.
• matter for the admin body
• So we get into a doctrine or mantra = no reweighing of the relevant factors and Baker
will be criticized = decision makers have to give sufficient weight to best interest of
children
• Mantra of Suresh: No rewaying of the factors
• But in Suresh = say that you do not look at the weight that was given to considerations
• So we go from patent unreasonableness, to Baker then, to Suresh (that gets rid of Baker),
and then we have Kanthasamy brings us back (it is ok to do some reweighing of the
considerations)
• Has the court in Kanthasamy given up on the doctrine of no reweighing?
• And if we think that some interests and considerations have to be taken into
account, how do we draw the distinction between the merits of the case and
the evaluation of the legality of the case?
Discussion
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Grants of discretion, and baker review of discretion on a reasonableness standard. Its significance in the cml world and what it was responding to: took canadian admin law in different direction, esp in terms of review of discretionary decision, fats: deportation order against mme baker. Humanitarian and compassionate grounds because she had 4 canadian born children. Scc: notes were so bad - decision-maker made a decision under an apprehension of bias. It could have stopped at the first step (procedure). Novelties in baker: 1) unified approach (discretionary & interpretation), distinction between discretionary decisions vs. statutory interpretation should not substantiate the argument of 2 approaches anymore. Baker was decided, there were still 3 standards of review. ): one place one might look: charter principles, ex. paying due respect to the due interest of children: 5. Baker in context: went to the scc from the federal court of appeal.
