Standard of Review on Questions of International Law: A Primer on Febles v Canada

On Thursday, the Supreme Court of Canada will release its decision on the appeal in Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324. I summarized the Federal Court of Appeal decision here. Here is a primer on one of the issues: whether courts should defer to administrative decision-makers on interpretations of international law.

The case can be viewed from a formal and a substantive perspective.

From a formal point of view, the Court will surely clarify whether Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 [Pushpanathan] is still good law. In Pushpanathan, the central issue was the interpretation of Article 1F(c) of the Convention Relating to the Status of Refugees. Applying the former “pragmatic and functional analysis”, the Court concluded that a standard of review of correctness ought to be applied (at para. 50). In his majority reasons, Bastarache J. commented that “Without an implied or express legislative intent to the contrary as manifested in the criteria [of the pragmatic and functional analysis], legislatures should be assumed to have left highly generalized propositions of law to courts” (at para. 38, emphasis added).

However, in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, Rothstein J. made the following statement of principle: “When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness” (at para. 39, noted by Evans J.A. in Febles at para. 24). This statement of principle sits uneasily with Pushpanathan.

Moreover, although the Court has significantly revamped its judicial review doctrine in recent years, it has not addressed the appropriate treatment of questions of international law. In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the pragmatic and functional analysis was replaced by a “simpler test” (at para. 43) to be known as the “standard of review analysis” (at para. 63). Certain categories of question now attract review on a standard of correctness (see Smith v. Alliance Pipeline, 2011 SCC 7, [2011] 1 S.C.R. 160 at para. 26). However, as Stratas J.A. noted in his concurring reasons in Febles (at para. 78), the Court has not determined whether questions of international law should be treated as either constituting or falling within a correctness category. Febles offers the Court an opportunity to address the place of questions of international law in the Dunsmuir framework.

In particular, a consideration of the issues in Febles may aid the Court in determining the parameters of the correctness category of questions of general law of central importance to the legal system and outside the scope of the decision-maker’s expertise (see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62). These parameters remain uncertain, though less so in light of the recent decision in Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40; see my post here. I suggested in “The Scope and Meaning of Reasonableness Review” that a test of uniformity be adopted to limit the scope of this category; Febles might represent an opportunity for the Court to import such a requirement.

From a substantive point of view, Stratas J.A.’s concurring reasons in Febles raise two questions of general interest. First, what is the appropriate standard of review given that “[s]ome [international law] subjects can benefit from interpretations and applications by tribunals with specialized understandings, policy appreciation, and expertise” (at para. 78). It is significant that the Federal Court of Appeal was divided on this question (contrast the reasons of Evans J.A. at para. 24).

Second, what is the appropriate reaction of the Canadian legal system given that “foreign interpretations [of international law] may not always embody values and principles to which we subscribe” (at para. 76)? Immigration tribunals are called upon to make these decisions, which will often be final. How administrative tribunals ought to address international law, particularly when it is out of step with Canadian values and principles, is a question that deserves consideration. The Court has recently provided helpful guidance to administrative decision-makers on how properly to apply Charter values in the exercise of their functions (Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395). A consideration of these issues in Febles would allow the Court to give guidelines to front-line decision-makers charged with applying international law as implemented domestically.

This content has been updated on October 28, 2014 at 22:03.