Recognizing its power to interfere in administrative decisions which patently failed the test of "reasonableness", a nine-judge bench of the Supreme Court of Canada restored Canadian citizenship of a child born to two Russian spies.
The Minister of Citizenship and Immigration had issued cancelling certificate of Canadian citizenship to one Alexander Vavilov, on the grounds of his being the child of foreign government employees, residing in Canada. Vavilov was born to a Russian couple, posing as Canadians under assumed names. In reality, they were foreign nationals working on assignment for the Russian foreign intelligence service.
On revelation of this fact, Vavilov, who was equally unaware of his parents' real identity and who possessed a Canadian Passport, was issued a certificate cancelling his Canadian citizenship.
The order was passed by the Registrar, citing the exception to s. 3(2) (a) of the Citizenship Act which states that Canadian-born child is not citizen if either parent was representative or employee in Canada of foreign government at time of child's birth. It thus exempts children of "a diplomatic or consular officer or other representative or employee in Canada of a foreign government" from the general rule that individuals born in Canada acquire Canadian citizenship by birth.
Vavilov moved an application for judicial review of the Registrar's decision before the Federal Court, which came to be dismissed. Subsequently, the Court of Appeal allowed his appeal and quashed the Registrar's decision stating that it was unreasonable. Thus, the present appeal before the Supreme Court was moved by Minister of Citizenship and Immigration.
Finding itself in concurrence with the Court of Appeals, the Supreme Court held that s. 3(2)(a) did not apply to children of individuals who had not been granted diplomatic privileges and immunities at the time of the children's birth.
The court stated that while administrative orders were presumed to be reasonable, it held that in conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified.
"What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker's place," it remarked.
The bench noted that in her reasons, the Registrar did not address the submissions made by Vavilov and did not do more than conduct a cursory review of the legislative history of s. 3(2). It noted that the Registrar failed to address the immediate statutory context of s. 3(2) (a), which stipulates that persons contemplated under the provision must have been granted diplomatic privileges and immunities in some form for the exception to apply. Further, she ignored the relevant cases which suggested that s. 3(2) (a) was intended to apply only to those individuals whose parents had been granted diplomatic privileges and immunities.
The court also noted that the Registrar disregarded compelling submissions that s. 3(2) is a narrow exception consistent with established principles of international law and with the leading international treaties that extend diplomatic privileges and immunities to employees and representatives of foreign governments.
"provisions such as s. 3(2) (a) must be given a narrow interpretation because they potentially take away rights which otherwise benefit from a liberal and broad interpretation. Yet there is no indication that the Registrar considered the potential harsh consequences of her interpretation, or whether, in light of those potential consequences, Parliament would have intended s. 3(2) (a) to apply in this manner. Although the Registrar knew her interpretation was novel, she failed to provide a rationale for her expanded interpretation," the court held.
The court added,
"Nothing in the history of this provision indicates that Parliament intended to widen its scope. Furthermore, the judicial treatment of this provision also points to the need for a narrow interpretation. In addition, the text of s. 3(2) (c) can be seen as undermining the Registrar's interpretation of s. 3(2) (a), because the former denies citizenship to children born to individuals who enjoy diplomatic privileges and immunities equivalent to those granted to persons referred to in the latter. This suggests that s. 3(2) (a) covers only those employees in Canada of a foreign government who have such privileges and immunities, in contrast with V's parents."
Addressing the larger issue of judicial review of administrative decisions, the bench clarified that presumption of reasonableness of an administrative order can be rebutted in two types of situations.
First, when the legislature has indicated that it intends a different standard or set of standards to apply. "This will be the case where the legislature explicitly prescribes the applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature's intent that appellate standards apply when a court reviews the decision."
Second, when the rule of law requires that the standard of correctness be applied. "This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies."
Case Title: Minister of Citizenship and Immigration v. Alexander Vavilov
Quorum: Justices Richard Wagner, Rosalie Silberman Abella, Michael Moldaver, Andromache Karakatsanis, Clément Gascon, Suzanne Côté, Russell Brown, Malcolm Rowe and Sheilah Martin.