Interview with Vavilov lawyer, Hadayt Nazami
Interview by Saba Ahmad
Thank you for speaking with me today, Hadayt. You are the lawyer behind arguably the most important and hotly anticipated legal decision from the Supreme Court of Canada of one year ago, Vavilov v. Canada. We are speaking today on the first anniversary of the release of the decision, which remains the most exciting and important development in administrative law in quite some time. In the landmark ruling, the Court revised the framework for reviewing administrative decisions and also vindicated your client’s right to Canadian citizenship.
Can you please answer, how did you come to represent Mr. Vavilov?
It was like any other situation; Alexander Vavilov was looking for legal advice. He had done his research and he called me to discuss his and brother’s, Timothy Vavilov's circumstances. He had already been fighting for three years to try to renew his Canadian passport through the Canadian embassy in Moscow but to no avail. It was only after he had filed a mandamus application in the Federal Court, that the Canadian officials overseeing the handling of his case began to realize he was not going to give up fighting for his identity and for his right to a passport, so they went after his very Citizenship instead. They started a process to try to cancel his citizenship in 2013. It was at this stage, when he had received a procedural fairness letter from the Citizenship Registrar, that he contacted me.
Did you have any inkling then that this case could go to the Supreme Court of Canada?
I did think of the possibility. Mr. Vavilov and I discussed this at the very outset. This was not because of legal issues. The law was clearly in his favour. It was the appearance of persistent hostility and arbitrariness that he had been put through by officials in the Canadian Embassy in Moscow that I found troubling. It appeared to me that a dubious effort was being made to keep the brothers out of Canada, despite the law. It was not difficult to believe that making submissions in response to a "fairness letter" was an exercise in futility. I did not need to warn him of my concerns. Alexander Vavilov knew this better than anyone having been so terribly treated by the officials during the three years he fought to renew his passport.
Can you tell me more please about Alexander Vavilov’s background?
Alexander Vavilov and his brother were born in Toronto to what they knew to be typical Canadian parents. His parents had met and married in Canada as Canadians. They owned and operated a business in Toronto. The family later moved to France for a number of years and from there to the US, where, in June 2010, his parents were arrested by the FBI and charged (along with several other individuals) with conspiracy to act as unregistered agents of a foreign government – essentially being Russian spies – a charge they admitted to. They had lived in Canada and posed as Canadian citizens under assumed identities.
The day after his parents pled guilty, they were returned to Russia in a “spy swap” between the two countries. This was when the identity of his parents became known to both him and Timothy. Alexander was 16 years old at the time.
The Vavilov brothers suddenly found themselves in new lives that they knew nothing about. Their parents were not who they knew them to be. They discovered having new backgrounds, and even relatives that they had never met, nor known anything about. It was in this context that the two of them ended up in Russia in 2010 – a country that was alien to them.
However, throughout their lives, both Vavilov brothers saw themselves as Canadian citizens. No matter where they lived, they identified as Canadians. They held Canadian passports all their lives, learned both official languages, and were proud of their Canadian heritage.
Alexander Vavilov came to you with a procedural fairness letter from the Citizenship Registrar – what did it say?
The procedural fairness letter alleged Mr. Vavilov was not entitled to Canadian citizenship by birth because - they said - at the time of his birth in Canada, his parents were here as deep cover Russian spies, to later spy on the US.
Citizenship officials were trying to pigeonhole him and his brother under section 3(2) of Citizenship Act - the only exception to the right of citizenship by birth - which typically operates to deny citizenship to the children of foreign diplomats.
What was wrong with the registrar’s reasoning?
The exception to the right of citizenship by birth, under s. 3(2) of the Act did not apply to the Vavilov brothers’ circumstances. This was alarming to me because it appeared what we were dealing with was the invention of an arbitrary and a very dangerous path, by some officials, for stripping people of their citizenship through birth - on the basis of the actions of their parents.
What does the statute say? Who can be deprived of the right of citizenship by birth?
Everyone who is born in Canada is entitled to Canadian citizenship except for children of a small and well-identified group of people, under s. 3(2) of the Citizenship Act and for a very particular purpose. To fall within this narrow exception to birthright citizenship, three particular facts must be present at the time of that person’s birth. These factors are explicitly stated in the statute and go together.
First, at the time of the person’s birth in Canada, the person’s parents were neither Canadian citizens nor permanent residents of Canada.
Second, at the time of the child's birth, the person’s parents were present in Canada with lawful permission.
And third, at the time of the child's birth, the parents must have had some degree of immunity or some privileges in Canada, which are not afforded to Canadian citizens.
Those meeting these three particular requirements are official employees or representatives of foreign governments, who are in Canada to be in the service of their respective embassies, consulates, or any other diplomatic mission - sometimes collectively referred to as "members of diplomatic households". Since such people and their families enjoy privileges in Canada or some degree of immunities from citizenship obligations, their children, though born in Canada, are not automatically citizens of Canada.
Didn’t the citizenship registrar know this?
Indeed, the citizenship officials were aware of all of these requirements. As the Supreme Court noted in its reasons, citizenship officials had all of my submissions including the international law aspect and the interpretation of the statute before them when making their decision. There was also Federal Court case law before those officials that supported my position, which they ignored. Just to be clear, the decision was not made by the citizenship registrar alone, as I discovered later, through my own investigation.
Was it common practice for the citizenship registrar to deny birthright citizenship to people under section 3(2)?
Yes – there had been a simple, familiar process to determine who would fall under this narrow exception, which the registrar departed from in this case.
Global Affairs Canada maintains a database listing foreign employees with diplomatic credentials, and those in their service, who also have immunities or privileges. The established process for s. 3(2) cases was for Canadian passport or citizenship officials to contact the Global Affairs Department and verify whether the Vavilovs were listed in the database, and therefore subject to the exception.
Did they do that?
No, they did not. I wrote them and asked them to follow the established process. They responded saying they did not need to follow this process and they conceded Mr. Vavilov’s parents had no such credentials nor immunities or privileges in Canada.
They had already made up their minds. The very purpose of this law is that it applies only to children of those in Canada with immunities and privileges. I warned them about having prejudged my client’s application - and this was well before submissions were even due in response to their fairness letter. I asked they recuse themselves from involvement in the decision-making process. The fact is, they knew very well that they were following an unprecedented interpretation of the law. This was done in order to deny the Vavilov brothers of their right of citizenship
What did the registrar decide upon reviewing your submissions?
As I expected, I received a decision letter signed by citizenship registrar, concluding that Alexander Vavilov was not entitled to right of citizenship by birth pursuant to the exception under s. 3(2) of the Act, indicating his citizenship was "canceled". They also recalled his Canadian identity documents, including a redundant certificate of Canadian citizenship which they had required him to apply for earlier, in the process of an application to renew his Canadian passport, when they had been giving him the runaround for three years.
What did you do next?
I filed an application for leave and for judicial review of the registrar's decision in the Federal Court. The history of judicial proceedings before the Federal Court and Federal Court of Appeal highlighted the post-Dunsmuir state of crisis of our judicial review process.
Can you explain what happened?
On judicial review, the federal court applied the correctness standard to the registrar’s decision. Despite the higher standard, the court nonetheless concluded the decision of the registrar was correct.
On appeal, all of the three judges decided that standard of review was reasonableness. Two appellate judges - the majority - decided the decision canceling citizenship was not reasonable and quashed the decision. One judge dissented, concluding the decision of citizenship registrar to cancel Mr. Vavilov’s citizenship was reasonable.
For the majority however, the registrar's decision could not be reasonable, in light of legislative intent, legislative context, including international law and the very particular context of Mr. Vavilov’s case.
What were your submissions to the SCC?
The government appealed and the SCC requested submissions on the standard of review, which was quite unusual. My main factum submissions were grounded in both the legal and factual ground of Mr. Vavilov’s particular case and they appear in the decision of the SCC in one form or another. Standard of review can neither be made nor applied in vacuum. My client’s case provided a rich and multi-layered context, in both legislative and factual context, that made it relatively easy to conceptualize the problems with the judicial review process.
I argued Section 3(2) of the Citizenship Act was a non- discretionary provision and therefore it left no flexibility for the citizenship registrar to depart from the statutory framework, regardless of standard of review, reasonableness or correctness. In my submission, s. 3(2) of the Citizenship Act was intended for the narrow purpose of capturing the small and well-defined group of individuals, as I indicated earlier.
Application of modern statutory interpretation tools supported my position. The Hansard record strongly supported my position on legislative intent. A detailed comparative analysis of international law, in particular the Vienna Convention on Diplomatic Relations and its Optional Protocols with domestic law, confirmed this. In fact, this comparison showed Canadian law mirrors international law on the issue as the SCC ultimately agreed. Further, Canada's obligations under common law, customary law and other International human rights principles dictated a similar narrow interpretation.
In addition to principles of statutory interpretation and legislative context, the registrar also ignored my submissions with respect to the particular circumstances of this case, including the life-changing impact the denial of Mr. Vavilov's right to citizenship by birth would have on him personally. He was losing rights that he could only have because of his citizenship. In her interpretation and application of this particular provision the registrar had also departed from her own department's past practices without providing any rationale for doing so.
The elements you see in these submissions, application of modern tools of statutory interpretation, conformity with international law, consistency with the tribunals own past practices, the consequences of decision on a person subject to it, and on their rights, are among the factors the SCC lists in its decision, as generally being present under both legislative context factual context of administrative decisions. Therefore, they are relevant for reasonableness review.
The Court ruled in favour of presumption of deference, as was the case in Dunsmuir. What did the SCC in Vavilov change?
While the presumption is deference, the principles and foundation underlying that presumption are no longer the same. The Supreme Court in Vavilov makes it clear, the presumption of reasonableness review is no longer premised upon notions of relative expertise. As the Court put it, legislative intent is the “polar star”. Administrative decision makers cannot derogate from legislative intent that enable them in the first place. As creatures of statute, their only function is to give effect to the intention of their respective enabling statute. The Court goes on and makes substantial adjustments to the role of the administrative tribunals and of the courts reviewing their decisions. It holds administrative decision makers responsible for justifying their decisions through a rational reasoning process, affirming the need to develop and strengthen a "culture of justification" in the exercise of public power.
At the same time, it restrains the focus of reviewing Courts to reasons and the decisions actually provided by administrative decision makers in order to enhance the quality of judicial review. Judicial review is not “rubber-stamping”, or "a means of sheltering administrative decision makers from accountability." Reviewing Courts do not assume or supplement reasons for administrative decisions, they do not make their own decisions and they do not "attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker." Rather, it is a "responsive and robust” review of the reasoning process and its outcome, provided by the administrative decisionmaker, in light of the legislative context and the particular factual context, to determine whether the decision is unreasonable. The reviewing Court's only function is "to safeguard legality, rationality and fairness" of the administrative process.
The SCC then provides extensive guidelines with respect to what constitutes a reasonable decision. In fact, the Court’s own application of the law and the facts to this particular case provides the best example of a judicial review process.
Congratulations on your stunning win, Hadayt, and thank you for speaking with me.
About the Interviewer
Saba Ahmad is a civil litigator in Toronto, called to the New York State bar in 2004, and the Ontario bar in 2009. Saba chairs an environmental charity, currently edits the newsletter for the OBA’s CCLHR section, and serves as public affairs liaison for the Civil Litigation section.
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