⚖️ Battling courts

To: Hearsay Readers

TODAY’S DOCKET

  • FCA and ABCA duke it out on admin law — SCC to weigh in

  • Feds give interim guidance on impact assessment

  • OCJ tackles delay in criminal trials

  • Sex offender registry gets revisions

JUDICIAL REVIEW

Supreme Court will clarify judicial review of regulations

Hand holding red pen marks up written work product

When a statute creates the broad strokes of a framework and lets someone else fill in the blanks, how should we check the blank-filler’s work? That question sparked an ongoing and pointed debate between the Alberta and Federal Courts of Appeal. Yesterday, the Supreme Court of Canada agreed to hear two cases that will let it weigh in and settle the disagreement.

What’s the big deal? There’s a whole mountain of statutes that delegate the power to create regulations. In Katz, the Supreme Court said courts reviewing regulations should be highly deferential. Courts shouldn’t be deciding whether regulations actually serve a purpose, or make sense from a policy perspective. The only bad regulations are those completely irrelevant to the statute’s objectives. That means it would take an “egregious case” to interfere. Deference on steroids, basically.

Since Katz, the Supreme Court decided Vavilov and overhauled the law that applies to standards of review. And that’s left appellate courts wondering whether Vavilov overrules Katz.

The Federal Court of Appeal says it does. In Portnov, Justice Stratas wrote that courts shouldn’t rely on Katz and should instead consider whether regulations are reasonable. That involves looking at the reasoning behind the regulations. The standard is deferential, but not hyper-deferential.

The Alberta Court of Appeal disagrees. The Court criticized the Federal Court of Appeal’s approach, saying that applying Vavilov to regulations would require second guessing policy decisions that courts shouldn’t be meddling with. The Court cautioned against getting “seduced” by Portnov.

Now the Supreme Court will have to pick its favourite. The Court granted leave to appeal from the two Alberta decisions that applied Katz over Vavilov and took aim at Portnov. Buckle up administrative law nerds.

The last word. Don’t be left with the impression Justice Stratas took pointed criticism lying down. Here are just a couple of paragraphs from his clap back:

[W]e can see that preferring Vavilov over Katz is not about furthering judicial interventionism or being “seduced by…[Portnov’s] reasoning”. It is about maintaining balance in the separation of powers and ensuring that all holders of public powers are accountable to the law …

So far, two academic commentaries criticize the recent decisions of the Alberta Court of Appeal and support Portnov.

2022 FCA 210, paras 29-43

HEARSAY ROUNDUP

Canadiana

The Ontario Court of Justice issued new practice directions to combat unreasonable delay in criminal trials. The Court says it will be offering Charter-compliant trial dates for every criminal trial, but the expectation is that counsel will be ready to set a trial within six months of police laying charges. Crown and defence need to set trial dates even if disclosure is outstanding and even if the parties are still discussing resolution.

🛣 The federal government clarified its interim approach to environmental management following the Supreme Court’s ruling on the Impact Assessment Act. The Minister of the Environment and Climate Change won’t designate any new projects for review, but the Impact Assessment Agency will continue looking at projects that are already in the hopper. Once the Agency is done collecting information about a project, it will issue an advisory opinion on whether the federal government has jurisdiction to proceed with an impact assessment. If at any point the Minister or the Agency decide a project doesn’t require further review, that decision will be made immediately to allow the project to proceed.

💵 The Chief Justice of New Brunswick approved the largest class-action settlement in the province’s history. The $17-million resolution relates to allegations of physical and sexual abuse involving psychiatric patients at the Restigouche Hospital Centre.

📜 The federal government changed the sex offender registry in response to a Supreme Court of Canada decision released last year. The Supreme Court said automatically adding every sex offender to the registry is unconstitutional. Under the new law, many offenders will at least have an opportunity to avoid being placed on the registry, but they’ll need to show that (i) being placed on the registry won’t help police investigate crimes and (ii) the impact on the offender is grossly disproportionate to the public interest in protecting society.

Beyond the border

🗺️ A District Court judge held that Georgia’s voting maps dilute Black votes and violate the Voting Rights Act. Lawmakers need to draw up new congressional and legislative maps for the 2024 presidential election.

🔍 Google opened its defence yesterday in the massive antitrust case brought against it by the US Justice Department. Google insists it doesn’t have an internet search monopoly — in fact, it faces a daily struggle because “Grandpa Google” doesn’t resonate with younger users.

Cartman from South Park in school classroom filled with students with text overlay "how do I reache these keeeds"

South Park — Comedy Central