Supreme Court of Canada grants citizenship to two sons of Russian spies

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The Supreme Court of Canada has granted citizenship to the sons of two Russian spies in a ruling that redefines how government decision-makers can be held accountable in the courts.

A government official had revoked the citizenship of Alexander Vavilov, 25, whose family’s story was told in the fictionalized TV series The Americans. Mr. Vavilov, 25, was born in Canada to Russian spies living in the country covertly, and received a Canadian birth certificate. After his parents’ arrest, the Registrar of Citizenship ruled that Mr. Vavilov was not eligible to be a Canadian. He asked the courts to throw out the decision. (The ruling also affects his older brother, Timofey, 29.)

Alexander Vavilov said in a statement that he feels “indescribable” relief. “No longer will I have to live in purgatory.”

The case gave the top court the opportunity to address criticism from academics, lawyers and even sitting judges of its approach to administrative law. This vast area of the law sets the terms under which Canadians may challenge the rulings of decision-making authorities from cabinet ministers to professional bodies to refugee boards. At issue is how much the courts should defer to the rulings of expert bodies.

The previous approach had been called confusing and inconsistent, even by the Supreme Court itself. A 2008 ruling had stressed assessing the reasonableness of decisions, but the approach took on different meanings over time.

In the Vavilov case, the court attempted to simplify its approach. It said judges should insist only that administrative decisions be “reasonable,” and not apply a higher standard, “correctness." But it was not unanimous on what reasonable means. All nine judges, however, agreed that the Registrar, who is not a lawyer, had misunderstood the citizenship law and wrongly deprived a Canadian-born individual of citizenship.

Under the law, children born in Canada to diplomats, consular officials or other representatives of a foreign government are denied citizenship. The Registrar had ruled that Mr. Vavilov’s parents represented a foreign government. The court said the law applies only to those whose parents have immunity as diplomats.

In the ruling, seven of the court’s nine judges acknowledged concerns that the court had fostered a two-tiered justice system that upheld administrative decisions as long as they were “somewhere between ‘good enough’ and ‘not quite wrong.’ ”

“The court has an obligation to take these perspectives seriously and to ensure that the framework it adopts accommodates all types of administrative decision making, in areas that range from immigration, prison administration and social security entitlements to labour relations, securities regulation and energy policy,” the majority said.

It told lower-court judges to assess reasonableness based on the rationality of the reasoning – “not a line-by-line hunt for error” – and on the purpose and text of the applicable laws, previous rulings and other elements. If a decision has harsh consequences for an individual, then the explanation must show how it “best reflects the legislature’s intention.” (Administrative decision-making bodies draw their authority from legislation.) The majority also set out exceptions: Cases of broad legal importance should be judged based on correctness, they said.

The majority said their starting point was deference to the role of administrative decision-makers; but stressed the need to hold them to account. Court review of decisions “is not a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability.”

The two dissenting judges accused the majority of throwing the judges who wrote the 2008 ruling under the bus.

“The precedential value of a judgment of this court does not expire with the tenure of the particular panel of judges that decided it,” Justice Rosalie Abella and Justice Andromache Karakatsanis wrote. “The wholesale rejection of an entire body of jurisprudence is particularly unsettling.”

They said the majority had adopted a “court-centric” approach in which judges will wield too much power, and the experts too little.

“The rule of law is not the rule of courts,” they wrote.

The court applied the new principles to two cases that involved a 2017 decision by the Canadian Radio-television and Telecommunications Commission that let Canadians see U.S. commercials on U.S. TV channels during the Super Bowl. The National Football League and Bell Media had separately challenged that decision. The majority said the CRTC was unreasonable, incorrectly interpreting the scope of its authority, while the dissenters said it was reasonable.

Some members of the legal community said trying to settle the chaos in administrative law with one ruling was impossible.

“They are trying to design something in system terms, while the whole culture of the common law is predicated on the pursuit of individual justice,” University of Calgary law dean Ian Holloway said.

Others predicted difficulties in applying the new approach.

“What one person sees as reasonable, another person says is unreasonable,” Osgoode Hall law professor Allan Hutchinson said.

Regina lawyer Lauren Wihak said the Vavilov ruling "goes a long way towards providing concrete guidance that is capable of consistent application, not only to reviewing courts, but also to administrative decision-makers themselves and the litigants who appear before them.”