Once More Unto The Breach: Confronting The Standard of Review (Again) and the Imperative of Correctness Review When Interpreting the Scope of Refugee Protection

Abstract

The Supreme Court of Canada’s standard of review jurisprudence has been marked by the ascendancy of reasonableness as the presumptive standard of review of decisions involving an administrative tribunal’s interpretation and application of its home statute. To the extent that this approach would lead to the reasonableness review of administrative decision-makers’ interpretation of the scope and meaning of provisions of the Immigration and Refugee Protection Act that implement the basic human rights conferred in international conventions to which Canada is a party, it must be changed. Interpretations of the scope of the Refugee Convention and Convention Against Torture raise questions of law of central importance to the legal system and outside the relative expertise of decision-makers under the Act. Such questions warrant uniform and consistent answers that can ultimately only be provided by national courts. Moreover, given the serious impact of refugee protection decisions on the claimants’ life, liberty and security of the person, tolerating divergent interpretations of basic human rights through reasonableness review is arbitrary and contrary to the rule of law. Accordingly, the potential for inconsistent interpretations must be resolved decisively through correctness review.