The Fuzzy Borderline Between Administrative Law and Constitutional Law: Damache v Ireland, [2020] IESC 63 and Brown v Canada (Citizenship and Immigration), 2020 FCA 130

As a matter of theory there is much to be said for the proposition that there is no hard-and-fast distinction between administrative law and constitutional law in Commonwealth countries. In the United Kingdom, without an entrenched, codified constitution, the distinction is entirely porous, with constitutional issues regularly seeping into judicial review cases (and, sometimes, when public authority liability is at issue, into tort, contract and restitution cases). Even in Commonwealth jurisdictions with entrenched, codified constitutions, similar seep occurs: answering questions about the scope of an administrative decision-maker’s authority and whether it has been exercised fairly and reasonably often requires recourse (explicit or implicit) to fundamental constitutional principles. (See, for a recent example, Richard Stacey’s paper in the UTLJ.)

Sometimes, however, a distinction must be made. Where the compatibility of a statutory provision or a statutory scheme with the entrenched, codified constitution is in issue, a court finds itself squarely in the realm of constitutional law. The question is binary: is the provision or scheme constitutional, or is it not? This is why, incidentally, the standard of review for such constitutional questions in Canada is correctness and makes sense of the Irish position that only the High Court (a superior court of record) can entertain questions of constitutionality. Even though the question is binary — and one is either in the realm of constitutional law or one is not — making the distinction is not necessarily easy.

Consider two recent cases, one Irish, one Canadian. In Damache v. Ireland, [2020] IESC 63, the Supreme Court considered the constitutionality of citizenship-stripping legislation. The procedural posture of the constitutional challenge was somewhat awkward. The Minister notified D of his intention to revoke D’s citizenship under s. 19 of the Irish Nationality and Citizenship Act 1956, on the basis that D had been involved in Islamist terrorist activities. Under s. 19, if the citizen opposes the removal of their citizenship, the Minister appoints an independent committee of inquiry. This committee issues a recommendation to the Minister, who then makes a final decision.

As soon as D received the Minister’s notice of intention, and without invoking his right to object to his citizenship being removed, D initiated legal proceedings seeking to quash the notice of intention, prohibit the Minister from revoking D’s citizenship and a declaration that s. 19 was unconstitutional and/or unlawful as a matter of European Union law and European human rights law. D was unsuccessful before the High Court and then sought leave to appeal to the Supreme Court. Leave was granted on two aspects of the constitutional issue: was the Minister purporting to exercise a judicial function; and did the failure to provide an impartial and independent tribunal constitute a breach of D’s constitutional right to fair procedures? I will leave the first aspect for another day (though see, in general, Conor Casey’s excellent case note for the Modern Law Review). As to the second aspect, notice that in Ireland, procedural fairness has been constitutionally entrenched, such that it is possible in principle for a statutory provision or scheme to be held to be unconstitutional because the decision-making machinery does not respect the duty of fairness (or, in the vernacular, “constitutional justice”: see further here).

Ultimately, Dunne J. invalidated s. 19, on the basis that the machinery did not provide for an independent and impartial decision-making process:

Following the service of a notice of intention to revoke, the individual is entitled to know the reasons for the proposal and can seek an inquiry as to the reasons for the proposal to revoke. He can make representations, call evidence and challenge the evidence against him. What he does not have is an “impartial and independent decision-maker”. The person who starts the process is the Minister. Where there is a Committee of Inquiry, his representatives present the reasons for the proposed revocation and the evidence to support it. Although the Committee reports its findings to the Minister, the Minister has made it clear that the findings of the Committee are not binding on him. The same person who initiated the process, whose representatives make the case for revocation before the Committee of Inquiry (where it is sought) ultimately makes the decision to revoke (at para. 128).

Given the “high standards” of procedural fairness required in view of the “severe consequences” of a s. 19 decision, the lack of an independent and impartial decision-maker was unconstitutional (at para. 129).

The difficulty with this analysis, as Humphreys J observed in rejecting the constitutional argument at first instance is that it presupposes that the statutory machinery set up by s. 19 will invariably treat citizens unfairly. But such machinery is presumed to operate in a constitutionally compliant manner and, as Casey observes, operates subject to administrative law principles:

As a result, any factually unsustainable, or abusive uses, of revocation power under this statutory process could be easily flagged in the recommendations of the independent Committee and open to correction via judicial review for unreasonableness or lack of proportionality. The Court’s conclusion s.19’s procedural provisions were systemically unsound from the perspective of fair procedures, due to a risk of bias, impartiality, and prejudgment etc. seems oddly detached from this rich jurisprudential context, and its concern at the fact the Minister was not legally bound by the recommendation of the Committee given undue weight.

Put another way, any breach of D’s rights would be attributable to the failure of the Minister or the Minister’s committee to respect the need for independence, impartiality and basic rationality in the decision-making process. To make a non-exhaustive list of examples, if the Minister took a high-handed approach to the recommendation of the committee or appointed individuals pre-disposed to decide in a particular way, or the committee made a decision based on flawed information and circular reasoning, the relevant decision could be attacked on judicial review without necessarily impugning the constitutionality of the legislation. The source of D’s ailments would be the decision(s), not the legislation itself. Moreover, the legislation would have to be interpreted in light of constitutional principles: there would be a strong argument that the committee should function independently and that the Minister could only depart from the committee’s recommendations where serious grounds for doing so existed (see, by analogy, the UK Supreme Court decision in Evans).

In short, the proximate cause of any violation of D’s rights would not be the statute but decisions made under the statute; and these could be effectively remedied by judicial review, including a reading down of the statute to ensure respect for the precepts of procedural fairness.

Contrast Damache with the decision of the Federal Court of Appeal in Brown v. Canada (Citizenship and Immigration), 2020 FCA 130. This case was about Canada’s immigration detention regime. Thousands of people are held every year by the Canada Border Services Agency with a view to their removal from Canada. Most are removed expeditiously. But others linger in detention for lengthy periods, for example because it is impossible to obtain travel documents for them. B was held in immigration detention for five years. He challenged the statutory scheme as a violation of s. 7 (life, liberty and security of the person), s. 9 (arbitrary detention), s. 12 (cruel and unusual punishment) and s. 15 (equality) of the Charter of Rights and Freedoms. The challenge failed because, as Rennie JA pithily summarized, “the recourse against an improper exercise of discretion resulting in the over-holding of a detainee is an application to quash that exercise of discretion under administrative law principles and section 24 of the Charter, not to strike down the section under section 52 of the Constitution Act, 1982” (at para. 23).

There are regular reviews of detainees in immigration detention by the Immigration Division of the Immigration and Refugee Board (at paras. 29-30; see also my post on Chhina). These reviews focus on whether there are grounds for the individual to remain in immigration detention (at paras. 31-32). If there are none, that ends the inquiry: “Release is the default” (at para. 32). If there are, a series of prescribed factors must be considered (at paras. 33-34); the Immigration Division can also impose conditions as an alternative to detention (at para. 35). In sum:

Detention reviews are timely and frequent: subsection 57(2) of the IRPA requires that detention be reviewed within 48 hours of arrest, within seven days after that, and every 30 days for the detention’s duration. The onus is on the Minister to establish both a ground of detention and that detention is warranted based on mandatory, case-specific factors. Detention may only be ordered where there are no appropriate alternatives, and, in considering alternatives to detention, subsection 58(3) authorizes the ID to impose any conditions that it considers necessary to neutralize the risk associated with release. The legality of the detention is subject to judicial scrutiny in the Federal Court (at para. 37).

The importance of the statutory machinery for regular detention reviews lay in its ability to put an end to unconstitutionally long detention, that is, detention violating the Charter (or administrative law principles):

Where there are regular detention reviews that give full and fair consideration to the non-exhaustive considerations…, prolonged detention is constitutional. Rather than being a source of unconstitutionality, the existence of discretion ensures that the Charter rights of detainees receive full consideration in light of their particular circumstances (at para. 74).

It is not necessary, Rennie JA explained, that the statutory scheme make the exercise of discretion to authorize or validate prolonged detention impossible. Rather, “[a] statutory grant of discretionary power should be read to require that it be exercised in a constitutional way, unless the statutory power itself impliedly or expressly authorizes infringement of the Charter, in which case the statutory grant itself may be subject to Charter challenge” (at para. 78). Robust judicial review “tests the reasoning process, its transparency and its integrity”, “examines the treatment of the discretionary factors and whether they were properly taken into account”, and “holds up the reasons to independent scrutiny to determine whether they pass legal muster, from both a Charter and administrative law perspective” (at para. 161). Accordingly, there is no reason to presume that B or others like him will be detained unlawfully. Rather, one should presume that the statutory machinery will operate as it is designed to do — within the broader context of administrative decision-making compliant with Charter and administrative law principles — and release those who ought to be released.

Another recent challenge to Canada’s immigration regime (barring refugee claimants who had arrived from the United States) failed for similar reasons. As Stratas JA commented, “a Charter challenge must be directed to the state action—legislation or administrative conduct—that causes the Charter infringement” (Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, at para. 71). This aligns with my suggestion from a few years ago that in difficult borderline cases the court should:

determine whether the decision-maker’s constitutive statute precludes it from granting the Charter remedy sought by the applicant. If so, then the applicant must challenge the general norm (statute, regulation or guideline) under which the decision was made, and not the decision itself. The advantage of this approach is that it is much more concrete than trying to determine in the abstract whether the Charter infringement was caused by a general norm or individualized decision.

This is far from a perfect solution. Difficult cases will inevitably arise, especially when litigants insist on challenging the constitutionality of a statutory provision or statutory scheme. But in the end, a court has to decide for itself whether the issue really is with the statute or decision-making under the statute. In making that decision, I prefer the analysis in Brown (and Canadian Council for Refugees) to the analysis in Damache.

This content has been updated on October 25, 2021 at 15:38.