Welcome back, friends, after the holiday break! I hope you had a wonderful time with family. This newsletter covers cases released during the holiday break. If you missed it, you can find my year-end review for 2023 here.
Li v Canada (Citizenship and Immigration), 2023 FC 1753 (December 22, 2023)
Category: Reasonableness review.
Context: This is a judicial review of a decision of a visa officer denying the applicant’s study visa application. The officer rejected the application after concluding that Li was inadmissible to Canada on security grounds; specifically, on reasonable grounds that Li may engage in an act of espionage against Canada (s.34(1)(a) of the Immigration and Refugee Protection Act [IRPA]). The officer rested his decision on the nexus between “…Mr. Li’s education, his field of study and research in Canada, and open-source information reporting on [China’s] reliance on non-traditional collectors of information, including science and technology students, to advance China’s military and other interests” [14]. Specifically, the institution from which Li received his undergraduate education in China “has a strong relationship with the defence industry in China” and the officer pointed out that China has a “strategic interest in certain high-tech industries” in which Li is involved (microfluidics and healthcare). [16].
Issue: Is the decision reasonable?
Holding: Yes: “As hostile state actors increasingly make use of non-traditional methods to obtain sensitive information in Canada or abroad, contrary to Canada’s interests, the Court’s appreciation of what constitutes “espionage” must involve” [1].
“In my view, the jurisprudence supports a broader definition of ‘espionage.’ At its most basic level, the concept of ‘espionage’ contemplates secret, clandestine, surreptitious or covert gathering or reporting of information to a foreign state or other foreign entity or person” [32]. So long as the officer believes that there are reasonable grounds that these activities may occur, a finding of espionage is reasonable [64].
Analysis: This is a landmark decision that takes an expansive view of “espionage” under the IRPA. Li argued that the officer “included within [the definition of espionage] all non-traditional methods of intelligence collection,” which is too broad because “some forms of non-traditional collection of information do not constitute ‘espionage’” [29]. Crampton CJ disagreed, accepting the broader notion of “espionage” that also captures “the reporting or communication of information, whether surreptitiously or publicly gathered, to such a recipient” [47]. In other words, for Crampton CJ “espionage” can occur even if an individual is not under the direct control or direction of a foreign entity, and even if the information-gathering is public.
There are two issues: whether this definition is sound, and whether the definition, as applied to Li, is reasonable.
On the legal definition of “espionage,” we must remember that the issue here is not whether, as a matter of first impression, Crampton CJ was right or wrong to accept a broader definition. Rather, it is whether the officer’s interpretation of the legislation was reasonable. This may be a matter of how the decision was written up, but I see very little detail about how the officer interpreted the provision, nor much of a “reasons first” analysis, as called for by Vavilov. This impression is only bolstered by the opening paragraph of the decision, which suggests that conditions have changed such that this broader definition of espionage is now appropriate. It goes without saying that establishing what Parliament meant when it enacted this provision does not depend on what current conditions dictate. It would have been preferable for Crampton CJ to analyze if and how the officer’s decision connects to the text, context, and purpose of the provision. Perhaps the officer did this, but there is no way to tell from the decision.
Even if this definition is supported by the jurisprudence, the officer suggested that the link between (1) Li’s undergraduate institution in China, and China’s interest in using students for espionage purposes; (2) his field of study; and (3) China’s strategic ambitions made him a reasonable target for espionage. There is some reason to think that Li’s study plan may have set off alarms for the officer. Nonetheless, the officer must show that there are reasonable grounds to believe that Li may engage in espionage, which need not be at the direction of the foreign entity. This is not an exceedingly high bar, but neither is it nothing—Crampton CJ notes that it must be “more than mere suspicion” [58]. To my mind, the officer’s decision is linked together by a series of suspicions under the guise of reasonable grounds. It is speculative whether the mere combination of (1), (2), and (3) leads to a conclusion that Li might engage in espionage. The question is whether all individuals with this profile will be swept up under the broad definition. In my view, the officer’s decision can be attacked on the basis of Vavilov’s insistence on a rational chain of analysis without any unsubstantiated logical leaps.
There is no doubt that Chinese espionage is a growing concern, one that the Canadian government should take seriously. But I fear that this reality led the Court, in this case, to reason backwards: what “espionage” should mean in light of this growing concern, rather than what it does mean.
Thales DIS Canada Inc v Ontario (Transportation), 2023 ONCA 866 (December 29, 2023)
**Thank you to a SEAR reader for sending this case**
Category: Reasonableness review
Context: I profiled the Divisional Court decision in this case in Issue #44. At issue is the request for bids issued by the ON government for identity cards, which included a requirement that the production of the cards take place in Canada. Thales challenged the Procurement Directive, arguing that it violated the Canada-EU Free Trade Agreement [CETA], which prevents “discrimination” by party countries to favour domestic production. At first instance, a director of Supply Chain Ontario found the complaint unsubstantiated. On judicial review at the Divisional Court, Nishikawa J concluded that the director’s decision was unreasonable, and that the initial request for bids was reviewable.
Issue: Is the decision reasonable? Is the initial request for bids reviewable?
Holding: Favreau JA for the Court concludes: (1) the majority opinion in the Divisional Court “misapplied the reasonableness standard” [84]; (2) while “…this is not an appropriate case in which to decide the general issue of whether a request for bids can be subject to judicial review” [124], the specific circumstances of this case—an internal “CETA compliant process for addressing complaints about a request for bids” [128]—cautions against reviewability.
Analysis: The Divisional Court was led astray on the application of the reasonableness standard. The controversy before the director was whether there was an available “public safety” exception for imposing a domestic production requirement. The parties disagreed about the authority and test for triggering this exception, but the Divisional Court said that they did not, leading it to proceed on the wrong basis. This basic error meant that the Court did not pay attention to the parties’ submissions, a sure-fire way post-Mason v Canada (Citizenship and Immigration), 2023 SCC 21 to go awry under the reasonableness standard.
And this error was compounded by the Divisional Court’s engagement in disguised correctness review—it went on to decide the issue of whether the domestic production requirement met the public safety exception once it found that the director’s decision was unreasonable [101]. A word to the wise—this, under the reasonableness standard, is bad practice. Once a decision is found unreasonable, the court should leave it there, absent exceptional cases where the court has the power to decline to remit.
On the issue of reviewability, Favreau JA properly stays her hand. The issue of whether these procurement-type decisions can be reviewed is controversial and likely to continue to be relevant. Here, Favreau JA analogizes this situation to a typical case of adequate alternative remedies. This makes some sense. There is no reason to deal with the issue of procurement afresh if, in this case, there was a process available to challenge the bid.
Stoney Nakoda Nations v Alberta, 2023 AKKB 700 (December 4, 2023)
**Thank you to a SEAR reader for sending this case**
Category: Constitutional guarantee of judicial review.
Context: The Alberta Energy Regulator [AER] moved to strike the several judicial review applications related to its decision not to approve Benga Mining’s (now Northback Holdings Corporation) Grassy Mountain Coal Project. Under s.45(1) of the Responsible Energy Development Act [REDA] Northback originally sought leave to appeal to the ABCA, which was denied. Given that s.56 of the REDA contains a privative clause barring judicial review, this would have been the end of the road for Northback—in theory. AER generally argued that “the appeal rights under REDA afford the requisite, constitutionally required, degree of supervision over the AER decision such that this Court should exercise its discretion not to hear the applications for judicial review” [3].
Issue: Is judicial review precluded?
Holding: Yes.
Analysis: In excellent reasons, Kuntz J outlines a concise case for why a right of appeal over questions of law and jurisdiction is sufficient to satisfy the constitutional minimum of judicial review. Of course, this case is not necessarily a hard one. The provision here protected review over questions of law and jurisdiction. Harder cases come when the right of appeal only protects questions of law, because of the scope of the constitutional guarantee of judicial review announced in Crevier v AG (Quebec) et al, [1981] 2 SCR 220 which protects review over a specified class of “jurisdictional questions.”
Nonetheless, I think this decision is generalizable even to rights of appeal which only protect review over questions of law. For one, Kuntz J makes the important point that restricted statutory rights of appeal should not be seen as the ugly stepsister of judicial resolution compared to judicial review: “…both procedures still result in the judicial review of an administrative decision” [13]. Citing Crevier, she points out that judicial review can be barred, but not completely, and that rights of appeal adequately preserve this review. What’s more, while it is often argued that the combination of Vavilov, paras 45 and 52, provide that rights of appeal cannot on their own preclude judicial review, Kuntz J points out the important part of this passage: on their own. When coupled with a privative clause, as here, the story is different.
My paper on this issue reaches the same conclusion as Kuntz J even when it comes to questions of law. Not everyone agrees: as I have noted, the Federal Court of Appeal’s decision in Canada (Attorney General) v Best Buy, 2021 FCA 161 (Issue #4) takes a different approach. But the point is that we must pay close attention to institutional design choices, which means we cannot simply ignore privative clauses within constitutional limits. For what it’s worth, this attention to institutional design choices also reflects a point I made in the 2023 year-end wrap-up. And as the Supreme Court decides its Yatar case—which does not so squarely raise the constitutional problem—these issues are not going away.
9255-2504 Québec Inc. c. Canada (Procureur général), 2023 FC 1719 (December 19, 2023)
Category: Reasonableness review.
Context: This is a judicial review of the Minister of Environment's exercise of discretion and refusal to compensate corporations, under s. 64 of the Species at Risk Act, that were precluded from developing land that they owned as a result of the Governor in Council's decision to adopt an Emergency Order under s. 80 of the Species at Risk Act. There is a companion case: 2023 FC 1720.
Issue: Is the Minister's exercise of discretion reasonable?
Holding: No.
Analysis: This case presents a classic application of the principles of judicial review established in Vavilov and re-stated in Mason. Regimbald J is careful not to establish his own yardstick and measure the Minister's decisions according to that yardstick. Instead, Regimbald J evaluated the reasonableness of the Minister's decisions on the basis of an internal compensation policy established by the Minister's department and applied by the Minister, and the arguments that were made by the parties to the Minister on the basis of that compensation criteria. Regimbald J ruled that the Minister's decision was unreasonable for having failed to properly consider the parties' main arguments and provide adequate reasons as to why those arguments carried little or no weight in the decision-making process.
Compare this case to the cases in this week’s newsletter that arguably raise instances of disguised correctness review (a tendency to which the Supreme Court seems addicted). Here, Regimbald J focuses intently on the Minister’s decision and reasons, starting with those reasons and working out from them. Regimbald J keys his discussion of the Minister’s analysis to Vavilov’s constraints: (1) precedents under the statute dealing with its purpose [74 et seq]; (2) the parties’ arguments [118-120, 165 et seq]; and (3) the consequences to the individual [210 et seq]. This is the proper way to do reasonableness review.