Is This Correct?

Should deference be denied to administrative interpretations of laws that implement international human rights?

Gerald Heckman and Amar Khoday have recently posted on SSRN a forthcoming article, due to be published in the Dalhousie Law Review, called “Once More Unto The Breach: Confronting The Standard of Review (Again) and the Imperative of Correctness Review When Interpreting the Scope of Refugee Protection”. As the title suggests, Professors Heckman and Khoday advocate that correctness, rather than reasonableness, be standard used to review questions of law relating to the interpretation of the provision of the Immigration and Refugee Protection Act (IRPA) relative to refugees, especially sections 96-98, which implement in Canadian law the requirements of international treaties on the rights of refugees and persons in danger of being subject to torture. Long-time readers of this blog will not be surprised to hear that I welcome this pushback against the dogma of reasonableness review. Despite this, I have serious reservations about the argument made by Professors Heckman and Khoday. If its implications are pursued to their logical conclusion, they may swallow the law of judicial review whole. This may not be a bad result, but I would rather that it were brought about differently.

Professors Heckman and Khoday begin by reviewing the existing cases on the standard of review in the refugee protection context. They find that

the Federal Court and Federal Court of Appeal are now reviewing decisions involving administrative decision-makers’ interpretation of provisions of the IRPA that implement the basic human rights conferred by international conventions on a reasonableness standard because in their view, the presumption of reasonableness review of these decision-makers’ interpretations of their home statute has not been rebutted. (9-10)

They also note, however, that the Supreme Court, when it has ventured into the immigration and refugee law area, has often conducted searching review, albeit sometimes under the label of reasonableness, which in principle calls for judicial deference to administrative decision-makers. The Federal Court of Appeal too has sometimes remarked that, while the reasonableness standard applies, the range of reasonable outcomes in this area may be very limited, so that there is little to choose from between reasonableness and correctness.

Professors Heckman and Khoday disagree. They are concerned that deferential review opens the door to inconsistent decisions behind upheld as reasonable. In their opinion, this is intolerable: “[t]he scope of universal protections” embodied in IRPA’s provisions “cannot depend on whether a refugee claimant has the good fortune of having her claim decided by an adjudicator who happens to subscribe to” a view of those provisions that is favourable to her case instead of a different “yet equally reasonable alternative interpretation”. (22) And while “disguised correctness review” would help avoid this problem, it is not principled or transparent.

Intead, Professors Heckman and Khoday insist that

a non-deferential approach to judicial review is required for questions of law arising from administrative decision-makers’ interpretation of statutory provisions that serve to implement human rights conferred in international conventions that bind Canada (11)

After all, non-deferential correctness review is still supposed to be applied to questions of central importance to the legal system ― and, according to Professors Heckman and Khoday, the interpretation of statutory provisions that give effect to Canada’s commitments under international human rights law belong to this category. This is both because of the importance of the substantive interests at stake for refugee claimants and because, due to their “proclaimed universality”, “basic international human rights” must receive a uniform interpretation. (13) Indeed, “[t]he provisions of an international convention defining the scope of basic human rights protections can only have one true meaning”. (22)

Professors Heckman and Khoday add that there is a multitude of decision-makers who may be involved in deciding questions involving the interpretation of the IRPA‘s refugee-related provisions; that most of them are not legally-trained; and that Parliament itself has recognized, in section 74(d) of the IRPA, the existence of “serious question[s] of general importance” in this area. These reasons too suggest that courts should see to it that the IRPA‘s provisions receive a uniform, and legally correct, interpretation. And, they argue, if the Supreme Court will not do so, then Parliament should intervene and legislate correctness review for questions of law arising out of the application of the IRPA‘s refugee-protection provisions.

One way to read Professors Heckman and Khoday’s article is as a recognition of the dark, repressive side of the administrative state. Contrary to a certain progressive mythology, in whose thrall we still live, as co-blogger Mark Mancini recently observed here, the administrative state doesn’t only consist of benevolent and beneficent technocrats, rainbows, and unicorns. As I wrote in my contribution to last year’s Dunsmuir Decade symposium, we must

recall what is at stake in judicial review of administrative decisions. Proponents of deference often think of it as a means of protecting the decisions of an administrative state devoted to economic regulation in the name of social justice, or at least of enlightened technocracy. But there is much more to the administrative state economic than labour boards or arbitrators, whose decisions supply a disproportionate share of material for the Supreme Court’s administrative law decisions. The law of judicial review of administrative action applies also to the review of correctional authorities, professional licensing bodies, immigration officers, human rights tribunals, even universities and municipalities, and much else besides. People’s ability to enjoy their property or to practice their profession, their right to enter into or to remain in Canada, even their liberty … can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law. 

I asked, then, whether “[i]s it enough to tell” people whom the state is about to deprive of these important rights or interests, that this deprivation rests on a legal interpretation that is “justified, transparent, and intelligible” ― but doesn’t have to be correct. Professors Heckman and Khoday say that, at least as to refugee claimants, the answer is “no”. I certainly make no objection to that, and I would welcome similar blows being aimed at as many of the other heads of the administrative hydra as possible. If anything, I think it is too bad that Professors Heckman and Khoday don’t say much about this broader context.

Now, of course there is nothing wrong with an article such as theirs concentrating on the inadequacy of deferential review in just one area. But the trouble with the approach taken by Professors Heckman and Khoday is that, although they do not say so, it reaches very far indeed. If the fact that a Canadian law implements some supposedly important right under international law must mean that this law has “one true meaning” that must be ascertained and enforced by the courts, then reasonableness review of administrative decisions is an endangered species, perhaps critically so.

It’s not just the bureaucrats who administer refugee law and the human rights tribunals, which Professors Heckman and Khoday briefly mention, who will lose the benefit of deference. It’s the correctional authorities, since Article 10 of the International Covenant on Civil and Political Rights (ICCPR) provides that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” and, further, that “[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. It’s labour boards of all sorts, since the right to join labour unions is protected by Article 23 of the Universal Declaration of Human Rights, as well as provisions of both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR); the latter specifically protects the right to strike, too. It’s employment tribunals and arguably various professional licensing bodies, too, since Article 23 also protects “the right to work [and] to free choice of employment”, and the ICESCR includes provisions to the same effect. It’s various social security tribunals, since Article 11 of the ICESCR protects “the right of everyone to an adequate standard of living”. It might be the CRTC, since Article 19 of the ICCPR protects “the right to freedom of expression … includ[ing] freedom to seek, receive and impart information and ideas … through any … media of his choice”. It will even be the Patent and Copyright Offices, since Article 27(2) of the Universal Declaration stipulates that “[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”.

This list is not at all intended as exhaustive ― I’ve put it together after quickly skimming just the three major international human rights documents. There are many others, and they contain rights galore, any number of them reflected, in one way or another, in Canadian law. (I should, perhaps, make it clear that I do not mean to suggest that we should have all the “rights” purportedly recognized in these documents. Some of them, such as the “rights” of organized labour, are pernicious nonsense. But the point is that international law recognizes these things as important rights, and Canada subscribes to this view, however unfortunate this may appear to me personally.)

Of course not all legislation giving effect to these rights draws the connection as explicitly as the IRPA does in the case of its refugee protection provisions. But that shouldn’t matter, I think. Whether Parliament legislates in order to give effect, more or less transparently, to pre-existing international commitments, or the Crown subscribes such commitments on the strength of pre-existing legislation, the issue for Canadian administrative tribunals, and for Canadian courts reviewing these tribunals’ decisions, is how Canadian legislation is to be interpreted (if possible, consistently with Canada’s international obligations). So, to repeat, if follow the approach proposed by Professors Heckman and Khoday, we might have to get rid of deferential judicial review, if not across the board, then at least in many of the cases where it currently applies.

As an outcome, this would not be half bad. My own inclination would be to get rid of deference (almost) everywhere. A recognition that legislation has correct meanings that can and must be established by courts (even though this is, admittedly, not always easy) is most welcome, as I noted here. But if we are to come to this recognition, I would rather that we do in a different way than that suggested by Professors Heckman and Khoday. The existence ― or otherwise ― of legally ascertainable meanings is not, surely, a function of whether a statute reflects or even incorporates an international treaty. If legislative texts can have no meanings, then it’s not clear why treaties would escape this sorry fate; if they can, then treaties are not unique.

Canadian administrative law must change, and change radically, for reasons that have nothing to do with Canada’s commitments under international law ― though it may well be the case that such radical change will make it possible for Canada better to fulfill these commitments. That said, Professors Heckman and Khoday provide a practical illustration of one of the downsides of the status quo. More than this, they help undermine the prevailing assumption of the goodness of the administrative state and the judiciary’s deference to it. For these reasons, theirs is a welcome, if not an entirely compelling, contribution to the standard of review discussion in Canada; it is reasonable, one is tempted to say, if not altogether correct.

The Scope of Smuggling

On Friday, the Supreme Court issued a pair of decisions clarifying the scope of the provisions of the Immigration and Refugee Protection Act (IRPA, among friends) relative to “people smuggling” ― the transportation to or across international borders of consenting individuals who lack the authorization to cross the borders in question. In  B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, the Court held that a person is not inadmissible to Canada on grounds of organized criminality if he or she was not acting in order to obtain “a financial or other material benefit in the context of transnational organized crime.” [5] In R. v. Appulonappa, 2015 SCC 59, the Court held that the penal provision of IRPA relative to smuggling was unconstitutionally overbroad “insofar as [it] permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members.” [5]

While the legal issues on which the two decisions ultimately turn are different ― B010 is about statutory interpretation while Appulonappa is a Charter case ― they are closely related. Both decisions are unanimous, with the Chief Justice writing for the Court. I will review them together.

* * *

In B010, the issue was the scope of IRPA‘s provision that made foreign nationals inadmissible to Canada “on the grounds of organized criminality” and thus, if they claim asylum, prevented their claims from being determined on the merits, for “engaging, in the context of transnational crime, in activities such as people smuggling.” In the opinion of the Chief Justice, the “ordinary sense” of that provision, and in particular of the phrases “people smuggling” and “organized criminality” did not necessarily suggest that the activities it is aimed had to have a profit motive.

However, the Chief Justice concluded that provision’s “broader statutory context … suggests that [it] targets organized criminal activity in people smuggling for financial or other material benefit.” These considerations included the other grounds of inadmissibility provided by IRPA, which suggest that the provision at issue was specifically intended to target money-making organized crime, as well as the scope of the penal provision at issue in Appulonappa, which the Court held also targeted those who sought to make a profit from people smuggling. Moreover, the definition of a “criminal organization” in the Criminal Code, enacted so as to bring Canada into compliance with an international treaty a protocol to which deals with people smuggling, also refers to the profit motive. The protocol in question and other international agreements provided an “international context” which unambiguously pointed towards an intention to specifically outlaw profit-motivated smuggling, while not penalizing humanitarians and family members helping refugees.

* * *

As for Appulonappa, the issue there was whether IRPA‘s provision that imposed severe penalties, including potentially lengthy terms of imprisonment, on those who “knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required” was overbroad, and thus inconsistent with the principles of fundamental justice enshrined in section 7 of the Canadian Charter of Rights and Freedoms. A law is unconstitutionally overbroad if it penalizes acts that are not inconsistent with its purpose. Here, the problem was said to be that the provision reached the actions of those who did not seek to derive a material benefit from helping would-be refugees come to Canada. While the government argued the provision aimed “to catch all acts that in any way assist the entry of undocumented migrants,” the Court concluded that its purpose was narrower than that.

While the text of the provision in question was “broad enough to catch assistance to close family members and humanitarian assistance,” [36] here too other factors were more revealing of its aims. These factors included, once again, the international law, as well as the statutory context ― notably, the inadmissibility provision interpreted in B010, and the purposes of IRPA as a whole, which balance humanitarian concerns with those related to security. Importantly, IRPA provided that no prosecution for smuggling could be initiated without the agreement of the Attorney General. This “filter” was intended, as records of Parliamentary debates confirmed, to prevent the prosecution of persons participating in activities that fall within the broad definition of smuggling but are motivated by humanitarian or family concerns.

As the Chief Justice pointed out, it was thus clear that

Parliament itself understood … that the provision’s reach exceeded its purpose by catching those who provide humanitarian, mutual and family assistance to asylum-seekers coming to Canada, but argued that this overbreadth was not a problem because the Attorney General would not permit the prosecution of such people.  [72]

In her view, reliance on the Attorney General exercising his discretion in this way was not enough to avoid the overbreadth problem. Whatever Parliament’s intentions, nothing stopped the Attorney General from authorizing a prosecution inconsistent with those intentions. Thus, so long as the provision remained on the books, “people whom Parliament did not intend to prosecute [were] at risk of prosecution, conviction and imprisonment.” [74]

By way of justification under section 1 of the Charter, the government seemed to argue that the provision could not have been less broadly than it was, and was therefore minimally impairing. The Chief Justice, however, observed that “[s]ection 1 of the Charter does not allow rights to be limited on the basis of bare claims, but requires the Crown to provide a demonstrable justification for inconsistencies with Charter rights” [82; emphasis in the original], and concluded that this justification was missing.

Ultimately, this may be of little help to the appellants who had challenged the constitutionality of the provision in question in Appulonappa. Instead of striking it down completely, as they had hoped, the Court read it down “as not applicable to persons who give humanitarian, mutual or family assistance,” [85] and order a trial based on this revised version. Because the appellants were not actually humanitarians at all, but the crew of a ship that brought dozens of refugees to Canada, they might not far any better as a result of their constitutional victory.

* * *

The Court’s reasoning in both decisions seems persuasive to me in both decisions, at least as to the specific questions the cases turn on. I am rather less impressed with the Court’s apparent endorsement of the policy of criminalizing profit-motivated people smuggling. In the introduction to B010, the Chief Justice claims that “[t]he smugglers … cynically prey on these people’s desperate search for better lives to enrich themselves without heed to the risks their victims face.” Unfortunately, the Chief Justice pays no heed to the role that the criminalization of for-profit smuggling plays in making it the gruesome business it undoubtedly is. I have addressed this issue here and, quite recently, here. I might return to it again. For now, it is enough that, bad as they still are, our immigration laws are a little less bad now than they used to be.

Down with Hypocrisy, Again

Over at Democratic Audit UK, Mollie Gerver has an interesting post arguing that the European Union should decriminalize people smuggling ― that is, helping consenting individuals to cross borders which they lack permission to cross, in exchange for payment. (Consent is very important here: it’s what distinguishes “smuggling” from “trafficking,” the moving of people by force or fraud.) Having once written that Canada’s anti-smuggling laws are a form of organized hypocrisy, I agree. If anything, I would go even further than Ms. Gerver.

Ms. Gerver points that it is not illegal for a refugee to pay a smuggler, or to come to a country where he or she applies for protection. Even those whose applications for refugee status are denied are only deported, not punished. Smugglers, by contrast, face stiff criminal sanctions if they are caught, and this, Ms. Gerver explains, creates all sorts of perverse incentives. For example, smugglers “require extensive intelligence information to evade border control officials, which is often only possible by joining forces with those involved in arms trading and human trafficking networks.” Even worse, “[t]o avoid getting caught and arrested, smugglers often also take violent actions against migrants and refugees.” Moreover, because they face criminal sanctions whether or not they endanger the people they transport, smugglers are incentivized to carry as many people as they can, regardless of the risks, so as to maximize the profits.

Ms. Gerver proposes that smuggling be decriminalized, and that smugglers only face criminal punishment actions that are independently wrong, whether abuse or endangerment of the migrants, arms trafficking, or even “fraud if they fail to warn migrants and refugees about the risks of the journey.” In this way, smugglers will actually have an incentive to avoid, not to engage in, these sorts of behaviour. In Ms. Gerver’s view, such an approach would not be inconsistent with turning potential refugees away if they are intercepted before reaching safe haven, and generally with trying to reduce the number of those who reach their destinations and claim asylum. Indeed, she believes that “smuggling may also be easier to stop if decriminalised,” because smugglers might become “less nervous about being caught” once they know that they will not face sanctions if they are.

I’m not sure quite how seriously Ms. Gerver means her suggestions that decriminalization would be a way of reducing the number of refugees able to claim asylum in the West. I doubt that the suggestion is correct, because lowering the price of smuggling to those who engage in it will also lower the price their clients have to pay, and thus attract more of them, many more, I suspect, than would be stopped en route. Ms. Gerver might not think that this would be a good thing. But I certainly do. Indeed, I now believe, as I did not when I wrote the post linked to above, that states have no right to keep out any migrants, whether they are fleeing natural disasters, war, political persecution, or misery caused by the same sort of bad government that makes natural disasters into humanitarian catastrophes and causes wars and persecution. But you need not share this view to think that allowing more people who are genuine refugees as the term is generally understood to come to safety would be a good thing.

Indeed, you do not even need to believe that to want to change a policy that makes it more likely that refugees will be victimized by smugglers. To repeat, this policy is one of rank hypocrisy. We say that we welcome refugees, but actually we put barriers that not only make it difficult for them to come, but ensure that those who make the attempt are more likely to suffer or even die. That this barriers are invisible makes it worse. Ostensibly we protect vulnerable people from exploitation. In reality, as I argued in my earlier post on this topic, and as Ms. Gerver confirms, we create incentives for the smugglers to exploit them. To the somewhat more specific points Ms. Gerver makes, I would add the following, more general, one that I made in my earlier post:

[a]s with drugs, illegality ― created by the state ― reduces the number of willing sellers and increases the risks for which each of them wants to be compensated out of the price he charges. … But it seems quite wrong for the state to manufacture the conditions that give rise to the appearances of exploitation and then blame, and even criminalize, others for that exploitation.

The same situation prevailed with sex work under the legislative framework that the Supreme Court struck down in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. As I wrote in commenting on that decision, exploitation of sex workers by pimps is no small part a predictable consequence of the illegality of “living off the avails” of prostitution:

no law can make demand for protection of and assistance to prostitutes vanish. By criminalizing the supply that emerges to meet this demand, law makes supply more scarce, and therefore more costly, both in purely financial terms, and in the overall exactions the suppliers impose on their customers. An illegal activity inevitably attracts more “tough” ― read, abusive ― people than a legal one would.

Parliament was forced to change the way it regulated sex work after Bedford, but the new legal framework is, if anything, even more similar to that which applies to people smuggling, both in form and in effect. Only one side of the consensual  transaction, the one allegedly exploiting the other, is criminalized (in the case of smuggling, the supply; in the case of sex work, the demand), but the putative victim is endangered, and probably also stigmatized, as a result. It is hard to avoid the suspicion that, as with sex work and other activities considered reprehensible, regulations that ostensibly protect people from their ill-effects are actually meant to scare or disgust them out of engaging in these activities; or at least that, even if this is not the intent, the supporters of such laws really do not mind if they this effect.

The title of my comment on Bedford was “Down with Hypocrisy.” I still feel that way about the criminalization of sex work ― or of the demand for sex work. And I still feel that way about the criminalization of human smuggling ― or, to describe it less hypocritically, of remunerated assistance to people crossing borders that states had no business preventing them from crossing in the first place. Hypocritical laws enacted with, at best, a reckless disregard for the misery they cause do not belong on the statute book of any decent polity.

H/t: Michael Plaxton

Organized Hypocrisy

I want to come back to the issue of human smuggling. I posted yesterday about R. v. Appulonappa, 2013 BCSC 31, a decision of the B.C. Supreme Court striking down the provision of the Immigration and Refugee Protection Act (IRPA among friends or former federal court clerks) which criminalized aiding people to come to Canada without the papers required by IRPA―i.e. human smuggling. A sentence in Justice Silverman’s reasons caught my eye:

If the arrival of a legitimate refugee at a port of entry without the required documentation does not attract criminal liability (s. 133 of IRPA … ), why is it a crime to assist such a refugee to arrive? (par. 144)

Why indeed? Justice Silverman does not follow through on this question, indeed he seems to reject it, asserting that the policy of criminalizing human smuggling is “legitimate” (par. 166), although he holds that the way in which Parliament went about it was unconstitutionally clumsy. But I think that this question is worth asking.

First of all, two distinctions are in order. One is between “human smuggling” and “human trafficking”. The former means helping people get into a country illegally, that is to say without the papers (such as a passport and a visa) that entitle them to enter. The people being smuggled consent to it―indeed they actively seek it. Human trafficking, by contrast, means moving people―not necessarily across international borders―by force or fraud. There can be no consent in such circumstances. I am only talking about smuggling. The second distinction I want to draw is between the smuggling of illegal immigrants―people who intend to stay in the destination country without ever telling its authorities and without any claim of right to be there―and the smuggling of refugee claimants, who do notify the authorities and say that they are legally entitled to stay in the country as refugees. Justice Silverman’s question only applies to the latter situation, and that’s what I want to address. Illegal immigration is, well, illegal, so criminalizing assistance to it makes sense in the same way as criminalizing aiding and abetting any crime.

But what about criminalizing assistance to people who want to claim refugee status? To repeat Justice Silverman’s question, why is it a crime to assist those who are not themselves committing a crime?

Justice Silverman says that the purpose of the criminalization is “to protect victims of human smuggling,” (par. 138) but the essence of human smuggling, as opposed to human trafficking, is that the “victims” consent to it. Justice Silverman also says that the criminalization of smuggling “is intended to target criminal groups engaging in human smuggling who often exploit vulnerable migrants (including refugees)”; he distinguishes those who “are exploiting those migrants for profit,” and those who are “saving their lives by helping them escape persecution and violence in their home countries out of humanitarian compassion” (par. 154). But what exactly is wrong about a person making a profit out of a useful act, such as bringing a refugee to safety? The baker who sells me a loaf of bread does nothing wrong, even if he profits by the transaction, and even if I would starve without that bread. At least if I can pay, he is surely not bound to just give me the bread free of charge, “out of humanitarian compassion.” And refugees who resort to the services of smugglers obviously have the means to pay them.

Now the grocer in my example might be acting wrongly if, learning that I am starving, he charges me ten times the normal price. Then we could fairly say that he is “exploiting” me. But is that what happens with smugglers and refugees? I doubt it. It is surely the case that a major reason why smugglers’ services are so expensive as to seem “exploitative” is their illegality. As with drugs, illegality―created by the state―reduces the number of willing sellers and increases the risks for which each of them wants to be compensated out of the price he charges.  (Another major factor is surely the inherent danger and difficulty, and possibly the illegality, of getting the refugees out of the countries they are fleeing.) But it seems quite wrong for the state to manufacture the conditions that give rise to the appearances of exploitation and then blame, and even criminalize, others for that exploitation. And so I come to the conclusion that the reasons we give for criminalizing the smuggling of refugees are hypocritical, and thus the criminalization itself is.

But it is also hypocritical in a different, and arguably even worse, way. We proudly proclaim our commitment to “saving lives and offering protection to the displaced and persecuted” (IRPA, par. 3(2)(a)). But, as Justice Silverman observes, Canada does “not encourag[e] refugees to make their way to our shores” (par. 59). If they come here, well and good, we’ll try to review their cases through some form of fair procedure. (I know that many people will disagree that this is actually what we’re doing, especially after the recent reforms to IRPA. I won’t go into that debate now. I think it is at least the intention, even of the current government, to be fair.) But, sotto voce, we really wouldn’t mind that fewer of them show up. Criminalizing the actions of those who would bring too many refugee claimants here helps keep their numbers down without appearing to be harsh on the refugees themselves―on the contrary, we can go on pretending to be saving the poor people from exploitation. If that’s not a form of organized hypocrisy, I don’t know what is. I hasten to add that this is not just a Canadian problem. The criminalization of those who make a profit out of smuggling refugees is endorsed by the international instruments cited by Justice Silverman. But, again as with drugs, the international sanction does not make our bahaviour right.

Of course, there surely is a limit to the number of refugees any country can let in in a given period of time; especially if we actually give refugee claimants the benefit of a fair procedure, rather than treating their claims summarily and carelessly. Perhaps the fundamental, underlying hypocrisy is simply our claim to be a safe haven for the wretched of the Earth, when we simply don’t have the means to be that.