Rule of law requires correctness standard for constitutional questions

Administrative Law – Standard of Review - Reasonableness

Applicant’s parents were foreign agents who entered Canada and assumed identities of deceased Canadians. Parents returned to Russia from US and applicant’s passport and US citizenship revoked. Applicant amended birth certificate to parents' true identities to obtain Certificate of Canadian Citizenship. Registrar cancelled certificate as parents were not lawfully Canadian citizens or permanent residents and were employees/representatives of foreign government under s. 3(2)(a) of Citizenship Act. Applicant‘s application for judicial review was dismissed on basis that anyone who moved to Canada with goal of establishing life to further foreign intelligence operation was in service of, or employee/representative of, foreign government. Applicant’s appeal to Federal Court was dismissed and appeal to Federal Court of Appeal was allowed. Minister of Citizenship and Immigration appealed. Appeal dismissed. New course was established for reviewing merits of administrative determinations. Reasonableness is presumptive standard for review, and can be rebutted where legislature intends different standard to apply, or where rule of law requires it. Rationales including specialized expertise may be reasons for legislature to delegate decision making authority, but very fact that legislature opted to delegate authority was basis for default position of reasonableness review, and expertise was no longer relevant factor, as it had been using contextual review approach. Where legislature has provided for appeal from administrative decision to court, there is departure from reasonableness standard and court hearing appeal should apply appellate standards of review. Rule of law requires correctness standard for constitutional questions, general questions of law of central importance to legal system as whole, and questions regarding jurisdictional boundaries between administrative bodies . “Matters of true jurisdiction” is not distinct category attracting correctness review. The focus of reasonableness review must be on decision made, including both reasoning process and outcome . Reasonable decision is justified, transparent and intelligible, and is justified in relation to relevant legal and factual constraints.

Canada (Minister of Citizenship and Immigration) v. Vavilov (2019), 2019 CarswellNat 7883, 2019 CarswellNat 7884, 2019 SCC 65, 2019 CSC 65, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2017), 2017 CarswellNat 2791, 2017 CarswellNat 9490, 2017 FCA 132, 2017 CAF 132, David Stratas J.A., Wyman W. Webb J.A., and Mary J.L. Gleason J.A. (F.C.A.).

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