Issue #162: January 12, 2025
A major SCC case on statutory interpretation, s.96, Charter rights: a bumper crop of cases.
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43
Category: Statutory interpretation.
Context: I addressed this case in my Administrative Law Wrapped, 2024, but I draw it to your attention again because it is a significant case on statutory interpretation, and you may missed it in the year-end round up. This is important because, under Vavilov, the normal rules of statutory interpretation apply.
This case involved the powers of the Youth Division of the Court of Quebec. The provision of the Youth Protection Act [YPA] at issue says that where “the tribunal concludes that the rights of a child in difficulty have been wronged by persons, bodies, or institutions, it may order the situation to be corrected.” Does the Youth Division, under its power to correct “situations,” have the authority to address the situations of children and parties not before the court? This issue arose because the Youth Division, under this power, issued several broad corrective measures that pertained to others not before the court (see para 8).
Holding and Analysis: For a unanimous Court, Wagner CJC concludes that the provision in question only confers corrective powers on the Youth Division in relation to children before it. As he says: “It must be recognized that the legislature did not intend to grant the tribunal powers going beyond those required to carry out the mandate assigned to it. If the legislature’s intention, in matters of encroachment upon rights, had been to distance itself from this vision of individualized and particularized judicial intervention that imbues the entire YPA and to authorize the tribunal to make orders that apply to children whose situations have not been referred to it, the legislature would have done so in explicit terms” [51].
In drawing this conclusion, Wagner CJC offers important clarifications of the “modern approach” to statutory interpretation.
I copy his introductory comments:
[24] In this case, it is important to highlight a few principles that guide the interpretation of s. 91 para. 4 of the YPA. First, the YPA must be given a large and liberal interpretation that will ensure the attainment of its object and the carrying out of its provisions according to their true intent, meaning and spirit (see Interpretation Act, CQLR, c. I‑16, s. 41; Protection de la jeunesse – 123979, at para. 21). However, just as the text must be considered in light of the context and object, the object of a statute and that of a provision must be considered with close attention always being paid to the text of the statute, which remains the anchor of the interpretive exercise. The text specifies, among other things, the means chosen by the legislature to achieve its purposes. These means “may disclose qualifications to primary purposes, and this is why the text remains the focus of interpretation” [...] In other words, they may “tell an interpreter just how far a legislature wanted to go in achieving some more abstract goal” . As this Court recently noted, an interpreter must “interpret the ‘text through which the legislature seeks to achieve [its] objective’, because ‘the goal of the interpretative exercise is to find harmony between the words of the statute and the intended objective . . .’” (R. v. Breault, 2023 SCC 9, at para. 26, quoting MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899, at para. 39; see also Quebec (Attorney General) v. 9147‑0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at para. 10).
One of the confusions arising under the modern approach is whether courts must determine (1) whether we start with the text (understood schematically), and ask how the provision and its scheme in fact achieves the stated purposes of the statute (ie) as stated in para 25 above; or (2) whether we start with the broad purpose of the legislation and ask how the text should be interpreted to best achieve that purpose. Wagner CJC clarifies that the modern approach proceeds in the first ordering.
On these facts, what does this methodology look like? Wagner CJC starts by asking what “situation to be corrected” means. He sees the term as broad, making it impossible to “say with certainty which situation is in question” [36]. However, the context and scheme helped to clarify the meaning of the textual provision. The tribunal’s mandate is “guided by the logic of individualized and particularized justice based on the interests and rights of the particular child whose situation has been referred to it” [39]. In other words, interpreting the provision “situation to be corrected” as permitting corrective measures beyond the situation of the child referred to the tribunal would undermine this scheme. Indeed, “no provision of the YPA reveals an intention to depart from this logic of individualized and particularized justice…” [41]. Moreover, this conclusion “is supported by the fact that other actors have been given a mandate to examine the system as a whole, to identify its shortcomings and to reform it, taking into consideration the interests of children…” [43]. This sort of implied exclusion argument bolsters Wagner CJC’s understanding of the text.
The final step in the analysis is to ask how this contextual understanding of the statute connects to the purpose of the YPA and the provision itself. Again, we are not asking here how we can massage the text to better achieve the objective of protecting any child whose security or development is or may be in danger. Rather, we are asking if there is in fact a connection between the the textual interpretation and this purpose. In this case, Wagner CJC concludes that there is. The full protection of the rights and interests of children was intended, by the legislature, to be attained “through interventions aimed at protecting the interests and rights of one child at a time.” [70].
This is an important case, dispelling some of the uncertainty surrounding the modern approach. Over the last five years, there have been some interesting changes in the way courts express themselves in the world of statutory interpretation. The changes began in the Federal Court of Appeal, particularly in the cases of Stratas JA (see Hillier v Canada (Attorney General), 2019 FCA 44; Canada v Cheema, 2018 FCA 45; Williams v Canada (Public Safety and Emergency Preparedness), 2017 FCA 252). The Supreme Court picked up the mantle in TELUS Communications Inc v Wellman, 2019 SCC 19; R v Rafilovich, 2019 SCC 51; MediaQMI Inc v Kamel, 2021 SCC 23, and other courts have followed suit: Manns v Vancouver Island Health Authority, 2024 BCCA 110. Along with CISSS A, these cases all stand for the following propositions:
Courts must always consult the text, context, and purpose of a provision, but the text comes first. This ordering means that the selection and use of context and purpose follows an understanding of the semantic meaning of the text.
The “text” is understood structurally and holistically, as part of the total scheme enacted by the legislature. As in CISSS A, a provision that—on its own—may bear many meanings can be narrowed by understanding the total scheme.
The text frames the selection and use of purpose. Purpose is most often sourced by simply reading the text through, understanding how the legislature sought to achieve its objective (MediaQMI). As MediaQMI emphasizes, we must be certain not to select a purpose that is too abstract and that extrapolates away from the chosen means selected by the legislature. Since purpose must be consulted in every case, it can serve two uses in the law of interpretation. As in CISSS A, it can act as a check to ensure that a chosen textual interpretation—how the legislature sought to achieve its goals—connects to a purpose. In cases where a text is broad and can bear many meanings, purpose can narrow the text (like context) to an interpretation that is consistent with purpose (see, for example, Stratas JA’s use of purpose in Williams).
Kitsilano Coalition for Children & Family Safety Society v British Columbia (Attorney General), 2024 BCCA 423 (December 23, 2024)
Category: Section 96.
Context: From the Court’s summary:
City of Vancouver gave approval in principle to a contentious rezoning application which the Province had an interest in seeing come to fruition quickly. Plaintiff Coalition sought judicial review. Province became concerned re timing and purported to pass legislation that deemed rezoning to be validly adopted despite s. 566 of Vancouver Charter, the City’s procedural bylaw, and any decision of a court of law to the contrary. Coalition filed new petition seeking judicial review and the invalidation of the purported legislation as an attempt to oust Court’s jurisdiction contrary to s. 96 of the Constitution Act, 1867 and the principle of judicial independence.
On summary trial in SCBC, the purported legislation was upheld. Coalition appealed.
Holding: The effect of the purported legislation was simply to direct the outcome of a specific court proceeding, which direction was obviously intended for the SCBC. This amounted to interference with the Court’s adjudicative role under s. 96. Purported legislation was ruled contrary to s. 96 and of no force or effect under s. 52(1) of the Constitution Act, 1867.
Analysis: This case concerns the controversial Arbutus development in Vancouver, which the Court (per Newbury JA) exists in the context of an ongoing housing crisis. To my mind, this development was a no-brainer (I am, admittedly, a YIMBY). But I will put that view aside and focus on Newbury JA’s point: “…the sole issue for us is whether the particular method chosen by the Province to facilitate the Arbutus development crosses the line…thereby infringing the adjudicative role of the Supreme Court of British Columbia and s.96 of the Constitution Act, 1867” [7]. In my view, Newbury JA’s conclusion was available to her given the state of the s.96 jurisprudence.
The procedural issue involved the requirement, under the Vancouver Charter, that a public hearing be held to consider a zoning bylaw amendment required to facilitate the project. After judicial review was sought by the Coalition related to the hearing, the government introduced legislation that provided that the public hearing “is conclusively deemed to have been validly held” and that “the amending bylaw is conclusively deemed to have been validly adopted by the Vancouver council” [15].
The question is whether these legal prescriptions violate s.96. As Newbury JA recounts, s.96 does not prohibit a legislature from changing the law that courts must apply; it does, however, prohibit the legislature from interfering with the court’s adjudicative role and directing particular results in particular cases (see e.g. Barbour v The University of British Columbia, 2010 BCCA 63). The Attorney General argued that the law merely: (1) shifted authority from the Council to the legislative branch; (2) in so doing, merely amended the overall legal framework that the court must apply [68]. I think this was a valiant argumentative effort, but I agree with Newbury JA that “…the Court is made irrelevant to the matters raised in the Coalition’s petition” [69, Newbury JA’s emphasis]. This is different than a case like Barbour, cited above, in which the court was tasked with applying a new substantive statutory provision that was deemed to exist retroactively. Here, there is no new substantive law—the provision is more directly targeted to the adjudicative role of the court. Though this is not a privative clause case, the problem with the amending law creates a similar insulation that a privative clause creates.
Robinson v Canada (Attorney General), 2024 FC 2092 (December 23, 2024)
Category: Charter.
Context: The applicant sought judicial review of a decision made by the Deputy Minister of Fisheries and Oceans Canada [DFO], denying his request for “ongoing authorization to use a medical substitute operator in connection with an inshore lobster fishing licence” [1]. A substitute operator is a person who steps into the shoes of an existing licence holder in a case where that holder is unable to fish due to circumstances beyond their control [5]. The authorization for a substitute operator may not exceed a total of five years as a matter of policy, but DFO “has the discretion to depart from the limit and will do so in what it considers to represent extenuating circumstances” [6]. In this case, the Deputy Minister denied Robinson’s request for a further exception to the five year limit, concluding that s.15(1) was not engaged in the case.
Issue: For our purposes, the core issue arises under s.15(1) of the Charter—as a person with a disability, was Robinson’s right under s.15(1) engaged by the decision to deny him an exception to the give year limit? If so, what is the relevant standard of review?
Holding: The Court (per Southcott J) concludes that the issue whether the decision engaged Robinson’s equality right should be reviewed on a correctness standard, following the Supreme Court’s decision in York Region, 2024 SCC 22 (Issue #141).
Analysis: This is an important case because it is a first effort by a court to navigate the shoals between York Region and Commission scolaire, 2023 SCC 31 (Issue #117). This case frames the Charter analysis in administrative law (where the Charter right applies unlike in Commission scolaire) as involving two steps: (1) Is the Charter right engaged (correctness review); (2) if so, was it proportionately balanced against statutory objectives (reasonableness review).
The first issue this case raises involves the standard of review for questions related to “engagement” of Charter rights. The Applicant, quite rightly, argued that the question of Charter engagement should be reviewed on a correctness standard, on the authority of York Region. That makes perfect sense: York Region held that whether a Charter right arises in a particular case, its scope, and the proper mode of analysis is a question subject to correctness review.
But not so fast. The respondent advanced a creative argument: “…the correctness review required by York Region applies only in circumstances where a decision-maker has failed to turn its mind to whether a Charter right is engaged” [61]. This is what happened in York itself: while the arbitrator made references to certain concepts and cases under s.8, she conducted “her analysis entirely within the arbitral framework and examined the Grievors’ privacy right solely through the common law lens” (York, at para 94). The respondent argued that this case was different. Here, said the respondent, the DM made a clear decision that s.15(1) was not engaged. On this theory, and with reliance on Commission scolaire, the reasonableness standard should apply.
Southcott J, rightly in my view, rejects this conclusion. That is because “[t]o accept the Respondent’s submission would be to conclude that, if the arbitrator had thought about the Charter right but concluded that it did not apply, the majority in York Region would have examined that conclusion through the standard of reasonableness” [62]. On the plain language of Rowe J’s reasons in York Region, I think this is right. Recall the justification for the correctness standard in York Region-type cases: whether a constitutional right is engaged is a question that requires consistent answers because it goes to the scope and force of the Charter and whether it is relevant in a particular case. That is an issue that transcends any one decision-maker. Whether a decision-maker fails to understand that the Charter is engaged, or erroneously concludes that the Charter is not engaged, the result is the same—an incorrect appreciation of the relevance of the Charter. The theory of York Region covers both sorts of errors. Now, Southcott J does, interestingly, note that in cases where a decision-maker does offer reasons for concluding that a right is not engaged, those reasons can inform the correctness review [88]. This is fair enough, and is normal fare under the correctness standard. But the starting point is de novo review. And at any rate, attempting to parse different standards of review for these similar errors would be something an academic might try to do, but it shouldn’t be the business of busy courts and lawyers.
Interestingly, Southcott J weighs into an answer left open by York Region. Robinson also argued that, separate from the question of engagement, “a court’s assessment of the proportionate balancing might in some circumstances warrant a correctness review” [70]. This issue was left open in York Region because, having concluded that the decision was simply incorrect, “the majority was not required to move to the second stage of the analysis that involved reasonableness review” [70]. Properly understood, then, Southcott J is right that York Region’s narrow holding cannot be taken to imply correctness review on proportionate balancing.
However, I continue to maintain that the question of Charter engagement requiring correctness review is only thinly different from the question of proportionate balancing if we revisit the reason for correctness review in the first place: ensuring that the level of protection afforded to Charter rights does not change depending on how the state chooses to wield its power: York Region, at para 64, citing McLachlin CJC in Trinity Western, 2018 SCC 32. This would mean that it should not matter whether, at the stage of proportionate balancing, there are different ways that a right might manifest in different institutional contexts—that would mean that the level of protection changes depending on the institutional context. As I have written before, there is wisdom in beginning from a presumption of de novo review, as in the Oakes context.
Southcott J’s reasons in this case allude to this extremely fine line between scope and application. The DM’s failure to properly reason about Charter engagement also led “to the DM conducting an unreasonable balancing of the Applicant’s rights against relevant regulatory and policy objectives” [2]. Southcott J notes that the Applicant’s argument “raises an interesting question as to whether it is possible for an administrative decision-maker to conduct a reasonable proportionate balancing analysis, after finding that the Charter right or value to be balanced is not engaged” [107]. Southcott J, though, declines to address as a matter of law whether this is possible, but does conclude on the facts of this case that the previous error infectged the proportionality analysis [116]. In this case, the DM—though concluding that the Charter was not engaged—went on to conduct what could be called a proportionate balancing [112, 114]. However, the DM originally concluded that the Charter was not engaged because of a characterization of the Applicant’s request as a “lifetime right to fish” [117]. The balancing analysis proceeded on this false characterization, which instead should have considered whether denying the applicant a chosen livelihood because of his disability was discriminatory [117].
While Southcott J declines to address this question as a matter of law, it is difficult to see how a proportionate balancing could occur in the absence of a properly-recognized Charter right. What would the decision-maker be balancing? Starting on the wrong premise surely means that any balancing analysis is unlikely to be proportionate.
Banovic v Canada (Citizenship and Immigration), 2024 FC 1990 (December 9, 2024)
Category: Delay and abuse of process.
Context: This is a judicial review of a decision of a Senior Immigration Officer, finding the applicant inadmissible under the organized criminality provisions of the Immigration and Refugee Protection Act (s. 37(1)(b)). The applicant’s argument before the Officer and on judicial related, in part, to delay leading to abuse of process. Based on the procedural history of the case, the applicant argued that an inadmissibility report under s.37(1)(b) had already been prepared, and the Minister’s delegate had decided instead to proceed only on the basis of a recommendation under another provision of the IRPA (s.36(1)(b)). The applicant argued that raising s.37(1)(b) at this point was an abuse of process; and, relatedly, he argued that the delay in raising the s.37(1)(b) issue is itself an abuse of process (see para 47).
Issue: Did the delay give rise to an abuse of process?
Holding: The Court (per Régimbald J) finds that immigration officers must consider abuse of process/delay arguments raised before them; and in this case, the officer failed to address the argument.
Analysis: This case raises two significant issues; (1) the recognition of a power for an officer to consider abuse of process/delay arguments; and (2) the finding that the officer, in failing to consider that argument in this instance, failed under Vavilov.
Judges in the Federal Court had previously held that the Refugee Protection Division and the Immigration Division have power, as part of the authority to control their own procedure, to consider abuse of process claims [43]. Régimbald J, quite rightly, recognizes this power in immigration officers, based on the “basic principle of Canadian administrative law” that “administrative decision makers are empowered to ensure fair proceedings and to duly respond to allegations of abuse” [45].
However, Régimbald J ultimately concludes that the officer failed to properly consider the issue of undue delay as a potential abuse of process [66]. This is a straightforward application of the principle enshrined in Mason v Canada (Citizenship and Immigration), 2023 SCC 21: the parties’ submissions, if unanswered by the decision-maker, will figure strongly in the reasonableness analysis. Here, the applicant made delay arguments backed by evidence, but “[t]here are no reasons in the decision…indicating that the issue of undue delay as a potential abuse of process was considered” [66]. Under any standard of review, a failure to properly consider the procedural fairness argument is fatal.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own