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Canada Younger son of Russian agents will ask Supreme Court this week to declare him a citizen

Alex Vavilov, right, and his older brother brother Tim leave a federal court after a bail hearing for their parents Donald Heathfield and Tracey Ann Foley, in Boston, Mass., on July 1, 2010.

Elise Amendola

The younger son of the Russian spies who inspired the television series The Americans will ask the Supreme Court of Canada this week to declare him a citizen because he was born here.

Alexander Vavilov, who moved to Russia with his brother Timofey after their parents were captured in 2010 in the United States, says he has been living in exile, which he likens to being an unwanted child. Timofey, citing Socrates, calls it a fate worse than death.

Both brothers say Canada is their true homeland.

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“When I meet new people, I say I am from Canada,” said Alexander, 24. He lived for no more than a year and a half in Canada after birth but maintains he visited many times, according to an affidavit that is part of the record before the Supreme Court. “In no way can I say the same about Russia, which has been forced upon me.”

The case has enormous potential consequences, not just for Alexander and 28-year-old Timofey (the court’s ruling will likely be applied to him as well), but for Canada – though not because the country is overrun with the progeny of spies.

At the heart of the Vavilov case is a dispute over what is known as the modern regulatory state. Simply put, Canada has thousands of administrative tribunals making decisions that once were made by courts. These cover things such as determining refugee status, resolving landlord-tenant or labour-management disputes or deciding whether a prisoner should be freed from solitary confinement.

In the Vavilov case, an administrative decision-maker known as the Registrar of Citizenship denied the brothers citizenship, citing a clause in Canada’s citizenship law that says the offspring of diplomatic or consular officials or other representatives of a foreign government do not qualify.

It is a sexy case for an unsexy area known as administrative law. The Supreme Court is being asked to decide how deferential judges should be when reviewing administrative decisions. A near-record 25 intervenors, including several provinces, will try to pull the court in various directions during the hearing, which begins Tuesday and ends Thursday.

Rulings by administrative decision-makers are subject to judicial review; whoever loses may ask the courts whether the tribunals accurately interpreted and properly applied the law. The question in the Vavilov case is whether judges should insist on “correctness,” or mere “reasonableness,” and whether some cases deserve stricter scrutiny than others. This is known as the “standard of review” in administrative law.

“As important as ‘beyond a reasonable doubt’ is to criminal law, standard of review is that important to administrative law,” Ottawa lawyer Eugene Meehan said.

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Governments have delegated much of what courts used to do to tribunals, which are faster, cheaper and more specialized. “More and more, administrative tribunals [regulate] the problems created by modern society,” former Supreme Court chief justice Beverley McLachlin said in a 2013 speech.

For a long time, judges were uncomfortable with the powers accorded to tribunals, and often tossed out their rulings. Beginning in the 1970s, however, courts began deferring to tribunals. But just how much deference should be shown has never quite been settled.

The back story to the Vavilov case – the real-life one – is that their parents, after being trained in Russia as spies, moved to Canada to build their “legend” – a convincing personal story. In 1990, Timofey was born, followed in 1994 by Alexander. In 1995, the family moved to the United States and, in 2010, they were caught and the parents were shipped back to Russia in a spy swap. Their two boys, who had dual citizenship in Canada and the United States, then found themselves strangers in a strange land, Russia, with Russian citizenship only. They have been fighting nearly ever since to be deemed Canadians.

The confusion in administrative law is highlighted by the conflicting rulings in the Vavilov case in the lower courts.

Justice Richard Bell of the Federal Court of Canada applied the highest standard of review – correctness – to the citizenship registrar’s decision on Alexander. Then he upheld the registrar’s decision to deny him citizenship.

By contrast, the Federal Court of Appeal, in a 2-1 ruling, used a lower standard; it said the registrar’s decision on Mr. Vavilov’s citizenship needed only to be reasonable, not correct. (But reasonable to a “more exacting standard” than usual, because the interests of an individual are high.) And yet, using this lower standard than the Federal Court, the majority overturned the decision and granted Mr. Vavilov citizenship. (The Federal Court then declared Timofey a citizen.)

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Two other cases on the same issue of deference to administrative tribunals are being heard at the same time. They involve the National Football League and Bell Media challenging a 2017 ruling by the Canadian Radio-television and Telecommunications Commission that permitted Canadians to see U.S. commercials on U.S. TV channels during the Super Bowl. Until then, Canadian commercials were shown on both Canadian and U.S. channels for the NFL championship game.

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