Two different biblical answers:
“The Lord…visits the iniquity of the fathers on the children and the children’s children, to the third and the fourth generation.” (Exodus 34:6-7 = Deuteronomy 5:8-10)
“The son shall not suffer for the iniquity of the father, nor the father suffer for the iniquity of the son.” Ezekiel 18:19-20 ESV
Photo credit: THE CANADIAN PRESS/Chris Young
“Alexander Foley” (above) was born in Toronto in 1994. At the time, his parents were living under false names, posing as Canadians, while being Russian citizens and undercover spies for the Russian foreign intelligence service. The child growing up had no idea that his parents were spies. He believed that his name was Alexander Foley, and that he was a Canadian citizen by birth. He lived as a Canadian child, and held a Canadian passport.
However, in 2010, after the family had moved to the United States, the FBI arrested his parents and charged them with espionage. They pleaded guilty and were deported to Russia. Alexander’s whole world as he knew it fell apart.
He was 16 at the time, and suddenly found himself living in Russia, with the strange new name Alexander Vavilov. After his parents’ arrest, Alexander wanted to renew his Canadian passport. But in 2014, Canada’s Registrar of Citizenship cancelled his certificate of citizenship, preventing him from obtaining a passport. He challenged her decision in court.
Does Canadian law require that the innocent son (now age 25) be denied Canadian citizenship because his parents were Russian spies? Should the court allow the Registrar’s decision to remain in force, or should it overrule it? That was the legal issue before the Supreme Court of Canada (SCC) in this case.
But the SCC went beyond Alexander’s personal issue to examine, and to try to repair, the confused state of Canadian law governing judicial review of government decisions. Was the SCC successful? That is the subject of Part 2 of this post.
As a general rule, anyone born in Canada has Canadian citizenship by birth, regardless of the citizenship of their parents. However, there is an exception in section 3(2)(a) of Canada’s Citizenship Act for children of foreign diplomats and similar foreign officials. This exception denies citizenship to children of “a diplomatic or consular officer or other representative or employee in Canada of a foreign government”. Diplomats live in Canada only temporarily and are not subject to the requirements or benefits of Canadian citizenship. (Canada’s law on diplomats’ children is similar to most other countries, by international agreement.)
The Registrar decided that because the parents were “representatives or employees” of Russia at the time of Mr. Vavilov’s (hereafter abbreviated as “V”) birth, he was not, and had never been, entitled to Canadian citizenship.
As paid spies, his parents were undoubtedly employees of Russia. But as non-diplomats and secretly Russians they were not representatives of Russia. So what should be determinative, whether they were employees or representatives?
V brought an application for judicial review (hereafter abbreviated as JR) of the Registrar’s decision to the Federal Court but lost. On appeal, the Federal Court of Appeal (FCA) allowed V’s appeal and set aside the Registrar’s decision, holding that it was “unreasonable”. The Minister of Citizenship and Immigration appealed that decision to the SCC. The Minister lost (judgment issued December 19, 2019).
The SCC upheld the FCA’s finding that the Registrar’s decision was unreasonable. She should have interpreted the Citizenship Act as applying only to children of parents who had been granted diplomatic privileges and immunities at the time of the children’s birth.
The SCC has said in numerous cases that laws should be interpreted in their proper context. But what is that context? It depends on the circumstances of each case — which is just another way of saying that there can be no comprehensive definition of “context”. So how broad or narrow should the “context” be when interpreting statutory words? Should the judicial lens zoom in or zoom out? That is a matter of judgment.
Unlike the Registrar, the SCC chose not to read this one section of the Citizenship Act in isolation. It read the section in the broader context of other parts of the Act, and other Canadian statutes and international conventions.
The Court’s looking at the statutory language in “context” required deciding the context. Selecting the context often effectively decides the case. The selected context led the SCC to decide that Parliament’s intention was to exclude from citizenship children of temporary-stay diplomats and consular officials. V’s undercover parents were not Russian “representatives” as they served no diplomatic or consular functions. Thus, V’s Canadian citizenship was upheld, and he got his passport.
Judges are required to be objective and impartial when interpreting the law. But judges are human too. So within the law, they try to do what seems fair. They can’t just overrule the Registrar on the subjective ground that it would be cruel to deny citizenship to a child whose parents had been foreign spies even before he was born. Although the Registrar may have seen no legal choice, the SCC looked around until it found one, in a broader context.
The final decision was what mattered to V. He’s back in Canada now. But his case will matter to all Canadians because the SCC used it to review and try to repair Canadian JR law. Reviewing decisions of federal, provincial and municipal governments is a large and impactful part of our law. The term “judicial review” is not well known. Many people are unaware of its importance in protecting their rights. A JR is somewhat similar to an appeal, which is a better-known term. Although there are some legal differences, the result is the same: the initial decision either survives or dies.
Many of the most important court decisions reported in the media are JRs, although often wrongly called appeals. Here are but a few examples:
- The Trans Mountain Pipeline cases brought by several First Nations against Canada (represented by the Attorney General), the National Energy Board and the pipeline company
- SNC-Lavalin Group Inc. against Canada’s Public Prosecution Service
- The Immigration and Refugee Board, which annually renders more than 40,000 decisions on refugee and immigration matters, is a frequent respondent, as is the Minister of Immigration, Refugees and Citizenship
- The Minister of National Revenue, in many tax cases
- The Minister of the Environment
- The Minister of Health
- The CRTC
- The City of Toronto, etc.
I shall have more to say in my next post about whether the SCC’s reasoning in V’s case is likely to provide significant clarity and consistency to the confusion in Canadian JR law today.
Categories: Judges, Judicial Review, Law
Thanks for the explanation Andrew. I would like to think that judges on the FCA and SCC use their heads and their hearts when making decisions. Obviously, context is crucial, but as you pointed out, how big is the breadbox when it comes to context? On the other side of the coin, is the precedent that is set by decisions such as this one, and the impact of such precedent, good or bad. My concern is that because that judges are political appointees, their decisions could politically influenced.
Judges have to balance between doing what they might like to do and doing what they are allowed by the law to do. “Context” provides a degree of freedom, but if they go too widely or too narrowly, judges of courts below risk being over-ruled and criticized by judges higher up.
I’ll never forget a facetious comment on that last point made by my late mentor, Gordon Henderson, after losing a case in the Supreme Court of Canada: “(Sigh) Oh well, they have the right to be wrong last.”
Precedent isn’t nearly as rigid as often thought. Theoretically the law is like a wall built of bricks, one on top of another. But I heard a judge once joke that the bricks are not made of brick but made of Jello, so they slide around.
A telling remark I heard several years ago in the Ontario Court of Appeal from Justice John Laskin went somewhat like this:
“Counsel, you say I am bound to follow case X, while your opponent says I must disregard that and follow case Y, which says the exact opposite. I can find sound reasons to follow either of these or neither of them, so your citations of ‘ binding precedent’ aren’t helping me. Now tell me why, apart from these two cases, I should decide in your client’s favour.”
An experienced judge can find their way around any case they don’t want to follow, or make themselves appear to be bound by any case they do want to follow.
Yes, judges in Canada are political appointees, but once they get on the bench they no longer seem to care who appointed them. When Mr. Harper was the PM he lost several constitutional cases at the SCC, and the judges he appointed were among those who decided against him. Unlike the US, many of our judges have no known political affiliations, and they don’t have to go through a partisan political confirmation process. But even in the US, many judges appointed as conservatives have become more liberal over time, and vice versa. That may be because we all live in our own little bubbles with co-workers, friends and relatives, but may evolve into a different bubble when subject to different influences.