Baker v. Canada

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC)

• H & C Application from a Jamaican applicant who had a number of children in Canada and a number in Jamaica
• Case is seminal on Duty of Fairness, Reasonable Apprehension of Bias, BIOC in H&C decisions, JR of Discretionary Decisions
• Also interesting for Use of International Law, Ministerial Guidelines, and broad Purposes of the Act to circumscribe discretion of the decision-making H&C officer here
• Court first discusses a number of factors important in assessing the duty of fairness:

o 1. The Nature of Decision being made: The more the tribunal resembles an actual court (in terms of making judicial decisions), the more court procedure should be imported into it. [here: exception to IRPA inadmissibility, very distanced from court proceeding]
o 2. The nature of the statutory regime: Ex. If there is no appeals process and decision is more determinative, greater procedural protections [here: exception to inadmissibility, but no appeals process]
o 3. The importance of the decision to those affected: if very important, more procedural protections. [here: very important]
o 4. Legitimate expectations of the parties – This is related to procedural expectations and does not create additional substantive rights. [here: no legitimate expectations created by ICRC]
o 5. The choices of procedure made by the agency itself – this includes the flexibility given to the agency in the legislation with respect to procedures it chooses [here: flexibility afforded in legislation]
o This list is not exhaustive

• What is owed pursuant to a duty of fairness will vary on a case by case basis

o “The concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. All of the circumstances must be considered in order to determine the content of the duty of procedural fairness”

• Convention on Rights of the Child did not create a legitimate expectation re: the manner of deciding H&C cases (e.g. that children’s rights would be prioritized in H&C applications and that certain procedural guarantees would be afforded beyond the normal participatory rights afforded)

• The Court then assesses the four remaining factors in the context of this case to determine whether the participatory rights accorded here were consistent with the duty of fairness:

o [34] Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or notice of such a hearing did not, in my opinion, constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances, particularly given the fact that several of the factors point toward a more relaxed standard. The opportunity, which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.

• The Court then considered whether the duty of fairness required the decision-maker to provide reasons in this case, and concluded that the duty of fairness mandated reasons in the context of H&C decisions:

…In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.

• The Court, however, advocated for flexibility and acceptance of the officer’s notes as reasons for the decision – therefore the reasons requirement of the duty of fairness was met here

• Duty of fairness also requires decisions to be free from a reasonable apprehension of bias from an impartial decision-maker

o The test for reasonable apprehension of bias was set out by de Grandpré J., writing in dissent, in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . [T]hat test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
• There was reasonable apprehension of bias here

• Even if no bias, decision would have been unreasonable.

• Court discusses JR in the context of highly discretionary decisions: Though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the (1) boundaries imposed in the statute, (2) the principles of the rule of law, (3) the principles of administrative law, (4) the fundamental values of Canadian society, and the (5) principles of the Charter.

o Court indicates that no dichotomy between “discretionary” and “non-discretionary decisions” – interpretation involves discretion

• Here the decision-maker failed to properly consider the BIOC (as a result of this decision, BIOC incorporated into s. 25 IRPA)

o Children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of children’s interests as important considerations governing the manner in which H & C powers should be exercised may be found, for example, in the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself.

o [75] The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable.