Tag: citizenship

Vavilov (Part 2 of 2): Did the Court Fix Canadian Judicial Review?

If you have not read Part 1 of this post I suggest that you read it first, here. This Part is for those interested in law and how it develops but is not a technical law journal article. For anyone wanting a detailed legal analysis I suggest reading Paul Daly’s 5 blog posts starting here.

A Bit of History

Changing Courts, Changing Attitudes

Until about the early 1980’s most Canadian judges were men, usually appointed from law firms representing businesses and governments.  Judges appeared generally sympathetic to litigants like their former clients and less sympathetic to unions, women and the less fortunate in society. As a broad generalization, judges were to the political right of the average Canadian.

Gradually, judicial appointments became more diverse and judicial attitudes evolved. The attitude change was substantially influenced by administrative law professors like Bora Laskin (who eventually became Chief Justice of the Supreme Court of Canada). Some law professors (then and now) serve as labour arbitrators or members of administrative tribunals like Labour Relations Boards or Human Rights Commissions. Unions will reject the appointment of arbitrators unless they believe them to be at least somewhat sympathetic to unions. Hence these arbitrators and labour board members led the way, both in law journal articles and as judges, to offset the perceived judicial bias against unions and labour relations adjudicators.  The attitude moved leftwards and has remained there, but whether you see this as having moved to the political centre or to the left of centre depends upon your political views.

Judges protected labour adjudicators by declaring that labour boards had labour relations expertise equal to or greater than generalist judges. In practice this was usually true.  “Expertise” became shorthand for “stop picking on them” and show some deference. Considerable respect for such decision-makers has been the judicial policy for decades.

Continue reading “Vavilov (Part 2 of 2): Did the Court Fix Canadian Judicial Review?”

Vavilov (Part 1 of 2): Should an Innocent Child be Punished for the Sins of His Parents?

Two different biblical answers:

“The Lordvisits 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

AV

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.

 

Continue reading “Vavilov (Part 1 of 2): Should an Innocent Child be Punished for the Sins of His Parents?”