Ministerial discretion (Canadian law)

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The idea of ministerial discretion, when employed in Canadian statute law, means the power of a Crown minister to vary or alter the decisions of his bureaucrats, one of his Committees, or one of his Boards. The idea derives from the laws of the United Kingdom, [1] of which Canada, under the rubric of British North America, once was part. The term needs to be written into the statute, as for example in section 51 of the Canadian Oil and Gas Operations Act:

United Kingdom Country in Europe

The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a sovereign country located off the north-western coast of the European mainland. The United Kingdom includes the island of Great Britain, the north-eastern part of the island of Ireland, and many smaller islands. Northern Ireland is the only part of the United Kingdom that shares a land border with another sovereign state, the Republic of Ireland. Apart from this land border, the United Kingdom is surrounded by the Atlantic Ocean, with the North Sea to the east, the English Channel to the south and the Celtic Sea to the south-west, giving it the 12th-longest coastline in the world. The Irish Sea lies between Great Britain and Ireland. The United Kingdom's 242,500 square kilometres (93,600 sq mi) were home to an estimated 66.0 million inhabitants in 2017.

British North America Former British imperial territories

British North America refers to the former territories of the British Empire in North America, not including the Caribbean. The term was first used informally in 1783, but it was uncommon before the Report on the Affairs of British North America (1839), called the Durham Report. These territories today form modern-day Canada and the Pacific Northwest of the United States.

Contents

SCC definition

In 1999, as it appeared to Justice L'Heureux-Dubé and her majority, [2]

Claire L'Heureux-Dubé, served as a puisne justice on the Supreme Court of Canada from 1987 to 2002. She was the first woman from Quebec and the second woman appointed to this position, after Bertha Wilson. Previously, she had been one of the first woman lawyers to handle divorce cases, and was the first woman appointed as a judge to the Quebec Superior Court and the Quebec Court of Appeal.

Immigration, refugees, citizenship and extradition

In special cases enumerated under section 5(4) of the legislation, [3] the Minister is empowered at his discretion to grant citizenship or other immigration status, as described in Baker v Canada. [2]

<i>Baker v Canada (Minister of Citizenship and Immigration)</i> Canadian Supreme Court case

Baker v Canada , [1999] 2 SCR 817 is a leading Canadian administrative law decision of the Supreme Court of Canada. The Court provided guidance on the standard of judicial review of administrative decisions. The issue was what standard of procedural fairness should be applied when considering the judicial review of the waiver of the requirement that applications for permanent residence be filed from abroad. The case also clarified the need for written reasons in some administrative decisions.

Idziak v Canada dealt with an extradition case, in which the appellant, who was wanted by the Attorney-General of the US, sought to remain in Canada. The Minister refused to exercise his discretionary authority not to surrender the appellant to American justice. [4]

Education

The Quebec Minister of Education sought to impose upon Loyola High School his own syllabus, in disregard of explicit legislated instruction. It appeared to Abella J that [5]

Abella, often known as Abella of Salerno or Abella of Castellomata, was a physician in the mid fourteenth century. Abella studied and taught at the Salerno School of Medicine. Abella is believed to have been born around 1380, but the exact time of her birth and death is unclear. Abella lectured on standard medical practices, bile, and women’s health and nature at the medical school in Salerno. Abella, along with Rebecca de Guarna, specialized in the area of embryology. She published two treatises: De atrabile and De natura seminis humani, neither of which survive today. In Salvatore De Renzi's nineteenth-century study of the Salerno School of Medicine, Abella is one of four women mentioned who were known to practice medicine, lecture on medicine, and wrote treatises. These attributes placed Abella into a group of women known as the Mulieres Salernitanae, or women of Salerno.

Fisheries

The Minister in charge of the DFO disregarded a non-discretionary regime that was imposed upon him in Species at Risk Act, and tried to substitute it for a discretionary power he found in the Fisheries Act. He was overruled by the Federal Court of Appeal in DFO v David Suzuki Foundation. [6]

DFO may refer to:

The Species at Risk Act (SARA) is a piece of Canadian federal legislation which became law in Canada on December 12, 2002. It is designed to meet one of Canada's key commitments under the International Convention on Biological Diversity. The goal of the Act is to protect endangered or threatened organisms and their habitats. It also manages species which are not yet threatened, but whose existence or habitat is in jeopardy.

Fisheries Act is a stock short title used for legislation in multiple countries relating to fisheries. The Bill for an Act with this short title will have been known as a Fisheries Bill during its passage through Parliament.

Investment Canada Act

In certain circumstances, Canadian corporations subject to foreign takeover bids are entitled to the discretion of the Minister for Industry and, if the Minister decides that the proposed takeover is not of “net benefit” to Canada, it fails. [7] [8]

Related Research Articles

Immigration, Refugees and Citizenship Canada (IRCC) (English) or Immigration, Réfugiés et Citoyenneté Canada (French) is the department of the Government of Canada with responsibility for matters dealing with immigration to Canada, refugees, and Canadian citizenship. Formerly known as Citizenship and Immigration Canada, the department was established in 1994 following a reorganization within the federal government and was renamed to its current name with the swearing in of the 29th Ministry in 2015.

Canadian nationality law

Canadian nationality law is promulgated by the Citizenship Act since 1977. The Act determines who is, or is eligible to be, a citizen of Canada. The Act replaced the previous Canadian Citizenship Act in 1977 and has gone through four significant amendments, in 2007, 2009, 2015 and 2017.

<i>Suresh v Canada (Minister of Citizenship and Immigration)</i>

Suresh v Canada , [2002] 1 S.C.R. 3 is a leading decision of the Supreme Court of Canada in the areas of constitutional law and administrative law. The Court held that under the Canadian Charter of Rights and Freedoms, in most circumstances the government cannot deport someone to a country where they risk being tortured, but refugee claimants can be deported to their homelands if they are a serious security risk to Canadians.

Braunfeld v. Brown, 366 U.S. 599 (1961), was a case decided by the United States Supreme Court. In a 6-3 decision, the Court held that a Pennsylvania law forbidding the sale of various retail products on Sunday was not an unconstitutional interference with religion as described in the First Amendment to the United States Constitution.

Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies in Canada. That is, the law concerns the manner in which courts can review the decisions of administrative decision-makers (ADMs) such as a board, tribunal, commission, agency or Crown minister, when he or she exercises ministerial discretion.

Zemel v. Rusk, 381 U.S. 1 (1965), was a United States Supreme Court case regarding the right to travel and area restrictions on passports, holding that the Secretary of State is statutorily authorized to refuse to validate the passports of United States citizens for travel to Cuba and that the exercise of that authority is constitutionally permissible.

<i>Chng Suan Tze v Minister for Home Affairs</i>

Chng Suan Tze v. Minister for Home Affairs is a seminal case in administrative law decided by the Court of Appeal of Singapore in 1988. The Court decided the appeal in the appellants' favour on a technical ground, but considered obiter dicta the reviewability of government power in preventive detention cases under the Internal Security Act ("ISA"). The case approved the application by the court of an objective test in the review of government discretion under the ISA, stating that all power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. This was a landmark shift from the position in the 1971 High Court decision Lee Mau Seng v. Minister of Home Affairs, which had been an authority for the application of a subjective test until it was overruled by Chng Suan Tze.

<i>Ahani v Canada (Minister of Citizenship and Immigration)</i>

Ahani v Canada [2002] 1 S.C.R. 72; 2002 SCC 2 is a significant decision of the Supreme Court of Canada in the areas of constitutional law and administrative law. It is a companion case to Suresh v. Canada , [2002] 1 S.C.R. 3. Both cases deal with the procedure for removal of Convention refugees for reasons of national security under the Immigration Act, R.S.C. 1985, and address questions of procedural fairness.

Rogers v. Bellei, 401 U.S. 815 (1971), was a decision by the United States Supreme Court, which held that an individual who received an automatic congressional grant of citizenship at birth, but who was born outside the United States, may lose his citizenship for failure to fulfill any reasonable residence requirements which the United States Congress may impose as a condition subsequent to that citizenship.

Precedent fact errors in Singapore law Singaporean legal doctrine

Errors as to precedent facts, sometimes called jurisdictional facts, in Singapore administrative law are errors committed by public authorities concerning facts that must objectively exist or not exist before the authorities have the power to take actions or make decisions under legislation. If an error concerning a precedent fact is made, the statutory power has not been exercised lawfully and may be quashed by the High Court if judicial review is applied for by an aggrieved person. The willingness of the Court to review such errors of fact is an exception to the general rule that the Court only reviews errors of law.

Administrative law in Singapore Law of Singapores government agencies

Administrative law in Singapore is a branch of public law that is concerned with the control of governmental powers as exercised through its various administrative agencies. Administrative law requires administrators – ministers, civil servants and public authorities – to act fairly, reasonably and in accordance with the law. Singapore administrative law is largely based on English administrative law, which the nation inherited at independence in 1965.

Illegality in Singapore administrative law Singaporean judicial review doctrine

Illegality is one of the three broad headings of judicial review of administrative action in Singapore, the others being irrationality and procedural impropriety. To avoid acting illegally, an administrative body or public authority must correctly understand the law regulating its power to act and to make decisions, and give effect to it.

<i>Chan Hiang Leng Colin v Public Prosecutor</i>

Chan Hiang Leng Colin v. Public Prosecutor is a 1994 judgment of the High Court of Singapore delivered by Chief Justice Yong Pung How which held that orders issued by the Government deregistering the Singapore Congregation of Jehovah's Witnesses under the Societies Act and banning works published by the Watch Tower Bible and Tract Society ("WTBTS") under the Undesirable Publications Act did not violate the right to freedom of religion guaranteed by Article 15(1) of the Constitution of Singapore.

Fettering of discretion by a public authority is one of the grounds of judicial review in Singapore administrative law. It is regarded as a form of illegality. An applicant may challenge a decision by an authority on the basis that it has either rigidly adhered to a policy it has formulated, or has wrongfully delegated the exercise of its statutory powers to another body. If the High Court finds that a decision-maker has fettered its discretion, it may hold the decision to be ultra vires – beyond the decision-maker's powers – and grant the applicant a suitable remedy such as a quashing order to invalidate the decision.

<i>Canadian Union of Public Employees v Ontario (Minister of Labour)</i>

Canadian Union of Public Employees v Ontario , 2003 SCC 29, is a leading Supreme Court of Canada decision on arbitration and bias in administrative law. The Court held that it was patently unreasonable for the Minister of Labour to appoint retired judges as arbitrators in labour disputes without considering their expertise in labour relations under the Hospital Labour Disputes Arbitrations Act.

The failure of a public authority to take into account relevant considerations and the taking of irrelevant ones into account are grounds of judicial review in Singapore administrative law. They are regarded as forms of illegality.

Zunera Ishaq is a Canadian Sunni Muslim woman living in Mississauga, Ontario, Canada, who was at the centre of a debate about the right to wear a niqāb— a veil that covers most of the face—when taking the Oath of Citizenship at a public citizenship ceremony administered under the Citizenship Act, RSC 1985, c C-29, which became a point of controversy during the 2015 Canadian federal elections.

<i>Sivsivadze v Minister for Justice</i>

Sivsivadze v Minister for Justice[2015] IESC 53; [2015] 2 ILRM 73; [2016] 2 IR 403 was an Irish Supreme Court case in which the Supreme Court dismissed a challenge to the constitutionality of section 3(1) of the Immigration Act 1999, under which the Minister for Justice order the deportation of a non-national for an indefinite period.

<i>Loyola High School v Quebec AG</i> Canadian Supreme Court case

Loyola v Quebec AG2015 SCC 12, [2015] 1 SCR 613 is a Supreme Court of Canada decision on the topics of Canadian administrative law, of judicial review, of standard of review and of ministerial discretion. The decision is notable for partially upholding the freedom of religion in a secular state, which sought to extinguish it.

References

  1. ↑ Thorsteinsson, P. N. (1963). "MINISTERIAL DISCRETION RESURRECTED" (PDF). McGill Law Journal. 10 (3).
  2. 1 2 Full text of Supreme Court of Canada decision at LexUM  and CanLII
  3. ↑ "Citizenship: Ministerial discretion to grant citizenship in special cases". canada.ca. Immigration, Refugees and Citizenship Canada. 2017-10-11.
  4. ↑ Idziak v Canada
  5. ↑ Loyola v Quebec AG 2015 SCC 12 , [2015] 1 SCR 613
  6. ↑ DFO v David Suzuki Foundation
  7. ↑ "A Slightly Less Cold House for Foreign Investors". Administrative Law Matters. Paul Daly.
  8. ↑ "Guidelines on the National Security Review of Investments". ic.gc.ca. Minister of Innovation, Science and Economic Development. 2016-12-19.
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