From Neutrality to Compassion: The Place of Civil Service Values and Legal Norms in the Exercise of Administrative Discretion

Abstract

[W]e Canadians do not know much about our own situation. We do know that in our country, as in England and the United States, there is at the federal level and at the provincial level a heterogeneous collection of bodies other than courts – independent commissions, civil service departments and other statutory authorities – deciding disputes between that mighty engine, the state, and the individual citizen or business corporation; but of what most of them in fact do, how they in fact do it, and to what extent they are in fact supervised, checked and controlled, we have only a hazy and rather general knowledge ... Law teachers and political scientists take note; here lies an untilled field for badly needed research and description.1 I Introduction I start from a proposition that owes much to Willis's influence, namely, that administrative law has failed to develop an account of administrative decision making rooted in the lived experience of administrative decision making. Willis juxtaposed the formalism and abstract reasoning of lawyers with the functionalism and practical reasoning of civil servants.2 Rather than emphasizing this dichotomy, I suggest that coming to terms with the dynamics of administrative decision making leads to a consideration both of civil service values and of legal norms. Further, I argue that courts have a key role in shedding light on civil service values and that civil servants have a key role in shedding light on legal norms. Willis wished 'to talk administrative law with a civil servant and political science accent,' to be a 'government man' and a 'what actually happens' man. In this paper, I attempt to apply this invocation to keep the [End Page 427] lived experience of decision makers in mind through an analysis of the discretionary judgements of immigration officers. Specifically, I examine how civil service values and legal norms interact in the exercise of the discretion to grant exemptions from the operation of the Immigration and Refugee Protection Act (IRPA) based on humanitarian and compassionate grounds ('H&C decisions').3 This setting was also the subject of Baker v. Canada (Minister of Citizenship and Immigration),4 arguably the farthest-reaching administrative law decision from the Supreme Court of Canada in a generation on the relationship between judicial review and administrative discretion. As I elaborate below, seeing administrative law through the eyes of these civil servants is daunting. Civil servants reconcile a variety of competing obligations – to the legislature; to the public; to applicants and their families; to professional duty and personal moral belief; to the rule of law; to the minister, the government of the day, and the honour of the Crown; and to self-interest and the self-preservation of the office and ministry. How these obligations are balanced in particular cases reflects institutional structures and individual preferences. Some parties will benefit from such structures and preferences, while others will be adversely affected. Put simply, public administration is not and has never been a science – it is and has always been normative.5 [End Page 428] The Supreme Court has recognized that the civil service is an 'organ of government' with a separate constitutional personality from the government of the day.6 The civil service, however, remains, in the judicial imagination, a means to ends set by legislative or cabinet policy makers. The notion that civil servants individually or the civil service collectively has ends of their or its own seems inimical to principles of democratic legitimacy and the rule of law.7 This is in large part why the administrative law account of discretion focuses more on its boundaries than on its substance. This is also why the claim that civil service values matter, or that there is a meaningful relationship between such values and legal norms, may have significant ramifications for...