The Relationship Between Hard Law and Soft Law

Even though guidelines (and other species of ‘soft’ law) are not binding, they can influence the meaning given to legislation. A series of four Supreme Court of Canada decisions make the point: in interpreting a statutory provision, it is necessary to have regard to text, purpose and context; relevant guidelines are part of the interpretive context. The first three decisions deal with guidelines and discretionary powers; the last – more significantly in my view – with interpretations of law.

The first case in the series is Agraira v. Canada (Public Safety and Emergency Preparedness).[1] A is a Libyan national. He first sought and was refused refugee status: he claimed that he was a member of the Libyan National Salvation Front. This caused problems for him down the line. When he applied to become a permanent resident of Canada, he was deemed inadmissible because of his involvement in a terrorist organization. In short, he was not involved enough to be a refugee, but too involved to be admissible!

At that point, he requested ministerial relief on the basis of his unusual circumstances. Section 34(2) of the Immigration and Refugee Protection Act provides that although otherwise inadmissible, “a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest” will be treated as admissible. An immigration officer prepared a report in his favour. A briefing note from the Canadian Border Services Agency also argued that the Minister should exercise his discretion in favour of the applicant. Yet the Minister did not follow this advice, concluding instead: “It is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations”. The Minister’s interpretation of “national interest”, therefore, was one “which related predominantly to national security and public safety” but which did not exclude broader considerations set out in the Minister’s guidelines.[2] As part of the interpretive exercise, LeBel J considered these guidelines:

Finally, the broader context of s. 34(2) of the IRPA also includes the Guidelines.  Although not law in the strict sense, and although they are liable to evolve over time as the context changes, thus giving rise to new requirements adapted to different contexts, guidelines are “a useful indicator of what constitutes a reasonable interpretation of the . . . section” (Baker, at para. 72).  The Guidelines were published in 2005, and they applied to applications for ministerial relief under s. 34(2) at the time the Minister reached his decision on the appellant’s application.  As is evident from the numerous considerations contained in Appendix 1, the Guidelines represent a broad approach to the concept of the “national interest”.  They do not simply equate the “national interest” with national security and public safety, as the Federal Court of Appeal did.  Rather, they suggest that the national interest analysis is broader than that, although its focus may properly be on national security and public safety.[3]

The next case is Kanthasamy v. Canada (Citizenship and Immigration).[4] At issue here was the scope of the Minister for Citizenship and Immigration’s authority to waive statutory conditions for “humanitarian or compassionate” reasons, an authority expressly conferred by s. 25(1) of the Immigration and Refugee Protection Act. K fled from Sri Lanka and applied for refugee status in Canada. When his application was refused, he applied to the Minister seeking permission to apply for permanent residence. At the time of this application, he was 17 years old and had been in Canada for almost two years.

Guidelines adopted by the Minister put some flesh on the bones of the bare reference to “humanitarian and compassionate considerations”. Immigration officers are advised that applicants should demonstrate unusual or undeserved hardship — something not anticipated by the regulatory scheme that is beyond the applicant’s control — or disproportionate hardship — an unreasonable impact on the applicant due to their personal circumstances. Relevant factors to consider are also set out in the Guidelines:

•             establishment in Canada;
•             ties to Canada;
•             the best interests of any children affected by their application;
•             factors in their country of origin (this includes but is not limited to: Medical inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not described in [ss. 96 and 97]);
•             health considerations;
•             family violence considerations;
•             consequences of the separation of relatives;
•             inability to leave Canada has led to establishment; and/or
•             any other relevant factor they wish to have considered not related to [ss. 96 and 97]. (ss. 96 and 97 address asylum claims by refugees)

There was “no doubt” that “the Guidelines are useful in indicating what constitutes a reasonable interpretation of a given provision of the Immigration and Refugee Protection Act”.[5] Accordingly, Abella J described the effect of the Guidelines as follows: “what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of ‘unusual and undeserved or disproportionate hardship’ in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case”.[6] As such, the Guidelines influenced the interpretation of the scope of the Minister’s discretion.

More recently, in Dow Chemical Canada ULC v. Canada,[7] the issue was whether decisions by the Minister of Finance about downward pricing adjustments were reviewable in the Tax Court of Canada or in Federal Court. The answer depended on whether these decisions were part of the determination of a taxpayer’s income (in which case the Tax Court would have jurisdiction as part of its role in assessing the accuracy of assessments to tax) or the exercise of discretion (in which case the Federal Court would have the authority to determine whether the discretion had been reasonably exercised). A majority of the Supreme Court plumped for the latter. Kasirer J noted that this interpretation would be consistent with guidelines about downward transfer pricing adjustments:

I note in passing that the interpretation of s. 247(10) advanced by the Crown is consistent with guidance produced by the Canada Revenue Agency after the Court of Appeal released its judgment in this case (TPM-03R: Downward Transfer Pricing Adjustments, June 21, 2022 (online)). Section 247(10) is said to place “a limitation on any downward transfer pricing adjustment”, which conditions that adjustment on the favourable opinion of the Minister (para. 7). Downward transfer pricing adjustments “are only available in limited circumstances” and “are not intended to serve as a vehicle for taxpayers to implement retroactive tax planning” (paras. 29-30). This guidance further highlights that the Minister’s decision is exceptional, discretionary and based in broad considerations of tax policy (para. 9). Challenging this policy-based decision should proceed separately from an appeal of the non-discretionary assessment.[8]

Lastly, and most importantly, Pepa v. Canada (Citizenship and Immigration).[9] P held a visa when she entered Canada. But on her entry into Canada, she was referred for an admissibility hearing to determine her entitlement to remain in the country.By the time the hearing at the Immigration Division rolled around, her visa had expired. She received a negative decision in the form of a removal order. She sought to appeal but the Immigration Appeal Division concluded it had no jurisdiction. Subsection 63(2) of the Immigration and Refugee Protection Act, SC 2001, c 27, provides: “A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing”.

Both the Federal Court and Federal Court of Appeal found that the IAD’s interpretation of s. 63(2) was reasonable. A majority of the Supreme Court thought differently, though. Having established that the decision was unreasonable because the decision-maker had relied on precedent that, properly read, did not govern the situation at hand, the majority went on to engage in an exegesis of the statutory scheme. They ultimately concluded, having reviewed the text, purpose, and context of the relevant statutory provisions that there was only one reasonable answer to the interpretation of s. 63(2): the one advanced by P. In coming to this conclusion, Martin J relied on soft law produced by a government department to support her interpretation of s. 63(2):

Section 20(1)(a) states that every foreign national seeking to enter Canada must establish that they “hold” the relevant visa — in this case, the permanent resident visa. Ms. Pepa has rightfully noted that Immigration, Refugees and Citizenship Canada (“IRCC”) has an operational manual, which is not binding as law on the IAD, but operates as evidence of general practice and context which can be used in statutory interpretation. The IRCC’s Enforcement Manual 19 (“ENF 19”) states clearly that upon a successful IAD appeal, where the decision is to allow the individual to remain in Canada:

The individual may be granted permanent resident status even if the permanent resident visa expired, provided they initially appeared for examination and presented their permanent resident visa within its period of validity.

(ENF 19: Appeals before the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB), August 22, 2024 (online), at s. 11.8)

ENF 19 indicates that where a foreign national is successful on an appeal to the IAD, and the IAD overturns a removal order so that the individual is allowed to remain in Canada, then that individual is not barred from entering Canada on the basis that their permanent resident visa has expired. They may be granted permanent resident status even if the visa has expired. It is sufficient as long as they presented an unexpired permanent resident visa at the port of entry upon their initial arrival in Canada for examination. For the purposes of s. 67(2), which is in the same part of the legislation as s. 63(2), the requirement that they “must establish . . . that they hold the visa” is, in this related provision, assessed at the time of arrival to Canada.

The IRCC’s Enforcement Manual 4 (“ENF 4”) (ENF 4: Port of Entry Examinations, February 28, 2024 (online)) also expressly contemplates that examinations at the port of entry may be delayed for a variety of reasons (see, e.g., “to allow the person to get their documents” (s. 11.3), “to obtain more information before deciding” (s. 12.3), or “to consult the visa office and obtain more information and evidence about the person’s marital status” (s. 12.6)). ENF 4 goes on to indicate that where examinations are delayed past the point of visa expiry, the applicant may still “be granted permanent residence at a later date after the expiration of their visa . . . provided they initially appeared for examination and presented their [permanent resident] visa . . . within its period of validity” (s. 12.13). This provides another example where what matters is that the person entered the country with an unexpired visa. Examinations may continue despite an expired visa, and permanent residence may still be granted despite an expired visa.[10]

What is especially interesting about Pepa is that the guidelines here were issued by a government department, whereas the interpretation under review was made by an independent administrative tribunal. That is, the Supreme Court treated guidelines issued from one part of the administrative state as a relevant interpretive consideration for another part. In Agraira, Kanthasamy and Dow Chemical, the guidelines had been issued by the same entity – a Minister – who was exercising the very discretionary power that was at issue. In those cases, it is readily understandable why the guideline would be treated as relevant to interpreting the scope of the statutory provision: it reflects the considered view of the person solely responsible for exercising the power, possibly developed over time with the benefit of experience. There is a leap from this position to the position in Pepa, albeit that in Pepa the Minister is also responsible for administering the same provisions of the Immigration and Refugee Protection Act as the Immigration Appeal Division had to consider.

In addition, Pepa related to a determination about the meaning of s. 63(2), whereas the previous cases each involved the interpretation of the scope of a discretionary power. Again, Pepa is something of a leap forward in this regard. By its nature a discretionary power is quite broad and the legitimate exercise of the power will generally, as a result, permit the decision-maker to take a wide variety of considerations into account: a guideline is useful in determining what those considerations might be. By contrast, a determination about the meaning of a statutory provision does not naturally lend itself to the same exercise. True, where the statutory language is broad or vague, the interpretive exercise might be quite similar. But that was not the case in Pepa. Accordingly, it is significant that the Supreme Court – for the first time – treated a guideline as relevant to discovering the meaning of a statutory provision.

Here, some caution must be exercised. In particular, it is not clear that a guideline should be treated as being capable of expanding the meaning of a statutory provision. As the Federal Court of Appeal observed, a non-binding instrument such as a Regulatory Impact Assessment Statement cannot override “clear language”.[11] The issue came up, though was not resolved in Nyobe v. Canada (Environment and Climate Change.[12] Under the Environmental Violations Administrative Monetary Penalties Act, the Minister for the Environment and Climate Change can impose fines for breaches of environmental regulations.[13] These fines are calculated by reference to a detailed scheme set out in the Environmental Violations Administrative Monetary Penalties Regulations.[14] The formula for calculating the amount of a fine includes an element for “environmental harm”. In this case, N was caught importing a hyena carcass on his return to Canada from a visit to Africa. This was a breach of environmental regulations.[15] The Minister imposed an additional fine for “environmental harm”:

For the environmental harm, the Minister cites the Policy framework to implement the Environmental Violations Administrative Monetary Penalties Act: chapter 4, online: https://www.canada.ca/en/environment-climate-change/services/environmental-enforcement/publications/policy-framework-administrative-penalties-act/chapter-4.html#4.3. The Framework provides a broad definition of environmental harm. According to the Minister, the Applicant, in importing African civet to Canada, participated in the “killing, harming, harassing, capturing or taking of wildlife species” and the disruption of biodiversity. Referring to studies demonstrating that hunting quotas are not respected in Cameroon and others demonstrating that hunters tend to target males, thereby creating an overpopulation of females that disrupts biodiversity, the Minister notes that the Applicant’s importation caused environmental harm.[16]

In essence, the Minister was arguing that the guidelines expanded the definition of “environmental harm” to include harm to disrupting biodiversity anywhere in the world. The Tribunal did not confront this issue head on but nonetheless found that the Minister’s expansive interpretation could not justify imposing an additional fine:

The Tribunal notes that it is necessary to establish that “the violation has resulted in harm to the environment”. In this case, there is no evidence in the record connecting the Applicant’s violation to environmental harm that may have taken place in Cameroon. The Applicant did import meat to Canada, but he neither hunted a protected species in Cameroon nor purchased the carcass that was found in his luggage. Even if the Tribunal were to accept the Minister’s proposal that damage to Cameroonian biodiversity can constitute environmental harm … it is impossible to establish on the basis of the evidence in the record that the Applicant’s violation resulted in the environmental harm.[17]

It is also useful to consider the view recently advanced by the UK Supreme Court in Wathen-Fayed v. Secretary of State for Housing, Communities and Local Government, 2025 UKSC 32. It saw guidance as being “of persuasive authority, as an academic textbook or article would be. Its persuasiveness depends on the strength of its reasoning” (at para. 32) and cited with approval the comments of Lloyd-Jones J (as he then was) in Chief Constable of Cumbria v Wright [2006] EWHC 3574 (Admin); [2007] 1 WLR 1407 at para 17:

It is, of course, for the courts and not the executive to interpret legislation. However, in general, official statements by government departments administering an Act, or by any other authority concerned with an Act, may be taken into account as persuasive authority on the legal meaning of its provisions… In any given case, it may be helpful for a court to refer to the guidance in the interpretation of the legislation. It may be of some persuasive authority. However, to my mind that is the limit of its influence. It does not differ in that regard from a statement by an academic author in a textbook or an article. It does not enjoy any particular legal status.

That is rather different from treating guidelines as part of the interpretive context: it sees them as a source of support rather than of illumination. In most cases, perhaps, the persuasive/contextual distinction will not matter, especially where the language being interpreted is precise and unequivocal. But where the language is more open-ended, the the Canadian contextual approach might permit a more expansive interpretive approach than the British persuasive approach.

In any event, all interesting food for thought as Canadian courts keep opening the door to consideration of guidelines in the statutory interpretation process.

[1] 2013 SCC 36, [2013] 2 SCR 559.

[2] 2013 SCC 36, at para. 62. For example (see Appendix 1 to the Court’s reasons) has the person adopted the democratic values of Canadian society:

What is the applicant’s current attitude towards the regime/organization, their membership, and their activities on behalf of the regime/organization?

Does the applicant still share the values and lifestyle known to be associated with the organization?

Does the applicant show any remorse for their membership or activities?

What is the applicant’s current attitude towards violence to achieve political change?

What is the applicant’s attitude towards the rule of law and democratic institutions, as they are understood in Canada?

[3] 2013 SCC 36, at para. 85.

[4] 2015 SCC 61, [2015] 3 SCR 909.

[5] 2015 SCC 61, at para. 32.

[6] 2015 SCC 61, at para. 33.

[7] 2024 SCC 23.

[8] 2024 SCC 23, at para. 56.

[9] 2025 SCC 21.

[10] 2025 SCC 21, at paras. 110-112.

[11] Teva Canada Limited v. Sanofi-Aventis Canada Inc., 2014 FCA 67, at para. 77. See also Ijaz v. Canada (Citizenship and Immigration), 2015 FC 67, at para. 43. They can be useful evidence of the purpose of the regulation-maker, however: Takeda Canada Inc. v. Canada (Health), 2013 FCA 13, [2014] 3 FCR 70, at para. 124.

[12] 2020 EPTC 7.

[13] SC 2009, c 14, s 126.

[14] SOR/2017-109.

[15] Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, SC 1992, c 52, s. 6(2).

[16] 2020 EPTC 7, at para. 14.

[17] 2020 EPTC 7, at paras. 32-33.

This content has been updated on August 11, 2025 at 00:08.