The Difference that Deference Can Make: Turp v. Canada (Foreign Affairs), 2017 FC 84

At issue in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386 was a grant of development aid to Malaysia to build the Pergau Dam. The grant was made under the Overseas Development and Co-operation Act 1980, s. 1(1) of which gives the Minister the power “for the purpose of promoting the development or maintaining the economy of a country or territory outside the United Kingdom, or the welfare of its people, to furnish any person or body with assistance, whether financial, technical or of any other nature”.

The Minister had been advised by his civil servants against funding the Pergau Dam project, on the basis that it was uneconomical. The Divisional Court took the view that aid could be granted only for sound economic development, an interpretation supported “by the way in which the successive ministers, guidelines, Governments and White Papers…have, over the years and without exception, construed the power as relating to economically sound development” (at p. 402).

While in general the Minister may take into account “political and economic considerations such as the promotion of regional stability, good government, human rights and British commercial interests”, there was here a contemplated development that was “so economically unsound that there is no economic argument in favour of the case” (at p. 402).

For criticism see Lord Irvine of Lairg, Human Rights, Constitutional Law and the Development of the English Legal System (Oxford University Press, Oxford, 2003), at pp. 164-165, and Lord Sumption in his FA Mann Lecture:

In substance what the Divisional Court decided was that this particular development grant was not a good idea. They therefore interpreted the statute as limiting the power to grant development aid to projects that were a good idea. Who was to decide what was a good idea? Naturally, the Court itself. The practical effect was to transfer to the court the discretionary powers of the Secretary of State on a matter of policy and the task of assessing the project’s merits. As it happens, Parliament’s view about the merits of the Foreign Secretary’s decision was different. It subsequently approved without demur a supplementary estimate in an appropriation bill, which reallocated the available funds so as to allow the payments to Malaysia to be made anyway, along with payments for two other projects which were thought to be open to the same objections.

“Judicial and Political Decision-Making: The Uncertain Boundary”, at p. 3.

Lord Sumption’s complaint here, I take it, is that the judges in World Development Movement overstepped the judicial mark. Had they done a better job, presumably, they would have reached the right result and would not, critically, have substituted their judgement for that of the Minister. But if one agrees with Lord Sumption about World Development Movement, and one fears that similarly problematic decisions would be reached in analogous cases, a potential response is to give some deference to the Minister’s interpretation of the relevant statutory provisions.

Contrast the recent decision of the Federal Court of Canada in Turp v. Canada (Foreign Affairs), 2017 FC 84. At issue here was a ministerial decision to approve the sale of armoured vehicles to Saudi Arabia, which would be used, the applicant feared, to violate the fundamental rights of those opposed to the Saudi Arabian regime.

Export permits are governed by the Export and Import Permits Act, s. 7.01 of which provides:

7 (1.01) In deciding whether to issue a permit under subsection (1), the Minister may, in addition to any other matter that the Minister may consider, have regard to whether the goods or technology specified in an application for a permit may be used for a purpose prejudicial to

(a) the safety or interests of the State by being used to do anything referred to in paragraphs 3(1)(a) to (n) of the Security of Information Act; or

(b) peace, security or stability in any region of the world or within any country.

7(1.01) Pour décider s’il délivre la licence, le ministre peut prendre en considération, notamment, le fait que les marchandises ou les technologies mentionnées dans la demande peuvent être utilisées dans le dessein :

1. a) de nuire à la sécurité ou aux intérêts de l’État par l’utilisation qui peut en être faite pour accomplir l’une ou l’autre des actions visées aux alinéas 3(1)a) à n) de la Loi sur la protection de l’information;
2. b) de nuire à la paix, à la sécurité ou à la stabilité dans n’importe quelle région du monde ou à l’intérieur des frontières de n’importe quel pays.

In addition, the Export Controls Handbook produced by the Minister provided that “countries whose governments have a persistent record of serious violations of the human rights of their citizens, unless it can be demonstrated that there is no reasonable risk that the goods might be used against the civilian population” would be subject to close control*. This meant, the applicant argued, “the Minister is not only obliged to consider the factors set out in subsection 7(1.01) of the EIPA, but must also refuse to issue an export permit if there exists a reasonable risk that the exported goods might be used against the civilian population” (at para. 39).

Not so, held Tremblay-Lamer J. The standard of review was reasonableness, which meant that the question for the reviewing court was whether the Minister’s decision fell within a range of reasonable outcomes: “If he considered the relevant factors in conformity with the constraints imposed by the legislation, the reviewing court must uphold his decision, even if it would have arrived at a different conclusion” (at para. 38). There were no prohibitions, statutory or otherwise, against exports to Saudi Arabia (at para. 41). Relevant factors, including human rights considerations, had been taken into account in the decision-making process (at paras. 42-44):

The decision refers to comments by the United Nations Panel of Experts on the situation in Yemen and indicates that there was no evidence that Canadian military equipment, including the LAVs, had been used to commit the alleged violations of international humanitarian law. The decision also takes into account media reports of the appearance of military equipment of Canadian origin among the rebel forces, but notes that the Canadian Embassy in Riyadh had concluded that these arms had been captured in the course of military operations and that this type of loss was inevitable in wartime. Whether or not one agrees with the outcome of his analysis, the Minister’s conclusions were based on the evidence in the record (at para. 54).

As such:

It is for the Minister, whose expertise in such matters has been recognized by the courts (Lake v Canada (Minister of Justice), 2008 SCC 23 (CanLII) at para 37 [Lake]), to assess whether there is a reasonable risk that the goods might be used against the civilian population. The fact that there have been no incidents in which LAVs have been used in human rights violations in Saudi Arabia since trade relations between that country and Canada began in the 1990s is significant evidence in the context of this assessment. For there to be a reasonable risk, there must at least be some connection between Saudi Arabia’s alleged human rights violations and the use of the exported goods (at para. 45).

In any event, the Handbook was only a ‘soft law’ instrument which could not fetter the discretion of the Minister (at paras. 46-50), who exercised his discretion in good faith, on the basis of relevant considerations (at para. 55).

I doubt that Lord Sumption would have much time for the idea that the Minister should be owed deference on the interpretation of “peace, security or stability”, but I suspect he would at least agree with Tremblay-Lamer J. that the Minister should be given a margin of appreciation in applying those open-textured provisions. Applying Tremblay-Lamer J.’s analytical framework to World Development Movement would presumably result in a decision in favour of the government, as in Turp. If so, deference can certainly make a difference in administrative law cases.

* Last clause added 13/2/2017

This content has been updated on February 13, 2017 at 21:54.