MacKinnon v Canada (Attorney General), 2025 FC 422 (March 7, 2025)
(edits made March 9, 2025)
Category: Correctness categories.
Context: This is the decision of the Federal Court (per Crampton CJ) dismissing the application for judicial review challenging the lawfulness of the recent prorogation of Parliament. He concludes, among other things, that Prime Minister’s advice to the Governor General to prorogue Parliament is justiciable, but that “the Applicants failed to demonstrate that the Prime Minister exceeded any limits established by the written Constitution or by the unwritten principles they identified” [8]. Others have ably analyzed the case: see e.g. Leonid Sirota, Paul Daly, Philippe Lagassé, Emmett Macfarlane, Vanessa MacDonnell. Much of this case is beyond my bailiwick, and there is a lot going on in it that I do not address, but let me offer some half-baked thoughts. I focus on Crampton CJ’s comments on the standard of review, and the difficulty of “deferring” on these sorts of questions—presuming they are reviewable at all. And I believe the Court makes this case a bit more complex than it needed to be.
Let me start with justiciability. It is one thing to say that all public power should be reviewable (on some set of questions) in the general administrative law context. That is the basis of the constitutional guarantee of judicial review under the 1867 Constitution Act, and it is simply a corollary of the age-old idea that once the legislature delegates power to a decision-maker, the courts can enforce the limits of the constating statute on the decision-maker. Of course, there are limited circumstances in our political order where the executive exercises power without relying on delegated power—such is the case with prorogation, an exercise of the prerogative power.
But the Westminster parliamentary system contains its own internal logic, and mix of legal and political rules—it is not a perfectly coherent legal system, completely explainable by the idea that the executive must always find its power in a delegating statute in a manner reviewable like a normal administrative decision. That’s true almost all of the time, but edge cases like prorogation remain important exceptions. Here, there is arguably limited space for legal norms to operate, and instead, there is probably space for the norms of political constitutionalism to step in (as Macfarlane and Lagassé explain).
That is why I do not find it untoward to say that such exercises of power are largely not amenable to judicial resolution, absent any legal content to be enforced. It is true that this carves out an island of power that is largely unreviewable in the courts in a manner that might appear offensive to the rule of law, but that is only a function of the organization of the system of government we hold. Nor does it mean that there are no remedies: there may be no legal remedies, but there always remain political constraints that operate in this narrow area. So long as we can hold that line—and take seriously legal limits in all other contexts (a failure to which Canadian courts are, sometimes, accustomed) there should be no worry about diluting the principle that the executive is bound by the law.
That said, as Leonid Sirota points out, there is limited legal content to enforce in this case: s.5 of the Charter, which provides that there should be a meeting of the Parliament and the legislatures every year. A prorogation that extends beyond this would run afoul of s.5, and so Crampton CJ could arguably review on that limited basis. But this review would be chastened. It would not involve review to determine whether the exercise of the power is, say, properly justified under reasonableness review (how could this be done in this context)? In this sense, Vavilovian review can morph to the context in which the decision takes place. This is the same move, by the way, that the SCC made in Auer v Auer, 2024 SCC 36: there, whether subordinate legislation fits with the enabling statute is simply a question of law, and the Vavilovian constraints pertaining to evidence, justification, and the record take on lesser force if any.
So Crampton CJ reviews, but in doing so, he arguably paints himself into a corner. Crampton CJ concludes that the standard of review is correctness because the issue is a constitutional issue and because it is one of central importance to the legal system as a whole. Under the Vavilov framework, these questions attract correctness review. To the extent the review should be focused solely on the narrow legal constraints applicable in such a case, this makes sense. As Emmett Macfarlane says, this would simply require “the enforcement of an entrenched textual provisions of the Charter…” rather than a messy examination of the purpose, effect, and justification of the grant of a prorogation request. This is a simple question of correctness review.
However, Crampton CJ doesn’t stop here. While he says that his review is limited to “assessing whether the Prime Minister exceeded any constitutional or other legal limits…” he opens the door to full-fledged review beyond the simple application of the correctness standard (limited to this legal question) in two ways. First, he notes that the jurisprudence “implicitly require a deferential approach to matters within the legitimate sphere of activity of the other branches of government” [155]. To be clear, I am not sure—under the correctness standard—how this deference should operationalize on the simple issue of whether the prorogation complied with a legal limit like s.5. That is a constitutional question par excellence, and I worry that Crampton CJ’s comments will be taken to sanction a broader approach to review of these sorts of powers.
Second, and as Sirota ably explains, Crampton CJ frolics in the world of unwritten constitutional principles. He does not think that s.5 exhausts the constitutional task [185]. Instead, he ponders “exceptional situations” where unwritten principles could step in [188]. I tend to think this is a product of, as Sirota says, the Canadian judicial allergy to bright line rules. There is always a worry about some far-off exception, and courts—perhaps with the best intentions—want to head off those exceptional situations at the pass through the creation of doctrine that contemplates them.
But I think this is unnecessary at best and potentially destructive at worst. Unnecessary, because courts are not legislators and do not need to construct doctrine for far-flung exceptions—they decide cases and controversies. The goal of deciding these cases is to resolve them, and to announce certain and workable doctrine by doing so. It is better to come up with an imperfect but certain rule and leave the exceptions for another day than to announce complex doctrine designed to take account of all the contingencies. As Richard Epstein likes to say, courts are in the business of making rules for the 95% of cases, despite the fascination of legal academics with the 5%.
It is potentially destructive, especially in this context, because the announcement of exceptions based on unwritten constitutional principles has the potential to make more complicated and sprawling a review that should be quite simple. The big danger with unwritten constitutional principles as standalone tools for questioning executive action is that those principles—while legal in character—can quickly devolve into philosophical or normative speculation, creating avenues for judges to escape from the simple rule entrenched in s.5 of the Charter. That is why the Supreme Court in City of Toronto, 2021 SCC 34 narrowed the use of unwritten principles to mostly an interpretive role.
All of this to say, Crampton CJ was faced with a bizarre set of facts and an unusual legal situation. For the most part, and despite my discomfort with the scope of the review announced by Crampton CJ, the decision is consistent with Poole’s idea of the modern prerogative two-step: courts say that these exercises of power are justiciable, and but then defer on the merits. Taking what Crampton CJ says seriously about the limits of the judicial role, courts should proceed with caution. But I do worry that the simple legal task of enforcing s.5 or singular Charter provisions will become complicated and more intensive by the language of deference and unwritten principles.
This case does not have much practical precedential value for administrative law. But it does show the importance of bright line rules in maintaining judicial legitimacy. The more that judicial review purports to address matters that fall further afield from the law, the more questionable the exercise can be. That is why I am so interested in articulating and preserving the limits on the judicial role. Judicial review is a key aspect of our constitutional and administrative law landscape. Simple rules that keep the judiciary in its lane can only serve the public good. Mushy standards that leave open the possibility of far-out exceptions are worrisome.
Conifex Timber Inc. v. British Columbia (Lieutenant Governor in Council), 2025 BCCA 62
Category: Reasonableness review.
Context: In this case, Conifex Timber Inc. (“Conifex”) appealed a decision made by the Supreme Court, which dismissed its application for judicial review.
Conifex applied to the British Columbia Hydro and Power Authority (“BC Hydro”) to obtain the electricity required to operate its computing facilities, used for cryptocurrency mining. While its applications were being considered, the Lieutenant Governor in Council (“LGIC”) issued an Order in Council (“OIC”) which directed the British Columbia Utilities Commission (the “Commission”) to relieve BC Hydro of its obligation to provide electricity to new cryptocurrency mines for a period of 18-months.
Following the Supreme Court decision, but prior to this appeal, the Utilities Commission Act (the “Act”) was amended by the enactment of the Energy Statues Amendment Act (“ESAA”). The new legislation authorized the LGIC to make regulations with respect to a public utility’s ability to provide electricity for cryptocurrency mines.
Approximately 1-month after enactment of the ESAA, the 18-month suspension period, required by the OIC, elapsed. On the same date, pursuant to the ESAA, the LGIC issued the Cryptocurrency Power Regulation, B.C. Reg. 163/2024. The Regulation restricted BC Hydro from providing electricity to cryptocurrency mines, such as those proposed by Conifex, for a further 18-months.
Issue: Does the regulation fit within the scope of the enabling statute?
Holding: Yes.
Analysis: This decision is an excellent example of the review inaugurated by Auer v Auer, 2024 SCC 36 (there is also an administrative law discrimination argument that I put aside). The question is simple: does the direction to cease the provision of electricity fall within s.3 of the Act, which permits the LGIC to “issue a direction to the commission with respect to the exercise of the powers and the performance of the duties of the commission, including, without limitation, a direction requiring the commission to exercise power or perform a duty, or to refrain from doing either, as specificed in the regulation.”
We can follow the Court (per Riley JA’s) chain of reasoning to see how Auer is properly applied. The court must begin by ascertaining and analyzing the text, context, and purpose of the statute, giving emphasis to the text as the anchor and control on the interpretive exercise. The text of the statute is broad and open-ended, and on its face, clearly authorizes the regulation, targeted as it is, to crypto mining operations. But Conifex tried a creative argument: it argued that the context supported a narrower view of s.3, one which limits the LGIC to factors that would apply to a public utility’s decision to discontinue the provision of service (see s.28(3) of the Act). The Court rightly rejects this argument. The machinery of the statute carves out a special role for the LGIC, and permits it to make decisions that might be based on broader energy policy considerations that transcend the legal constraints that bind the Utilities Commission.
The purposes of the Act could not have been used by Conifex to change any of this. It argued that a “primary or key purpose of the UCA is to give effect to the regulatory compact by preventing public utilities from engaging in undue discrimination in the delivery of their services” [111]. This is entirely question-begging: it reformulates one of Conifex’s arguments as a purpose of the law, giving it the credibility of statutory authority. But as Riley JA properly says, this is not the “sole or exclusive purpose of the Act” [114]. One can easily say something else: “…it would not be unreasonable to interpret the UCA’s overall objective as ensuring that the public’s current and future energy needs are met, in a manner that is safe, reliable, just and consistent with the government’s policy objectives…” [114].
Simple stuff, in reality. Conifex is a great example of what Cote J meant in Auer when she said that review of subordinate regulations for their reasonableness is fundamentally a question of statutory interpretation. Since it will be impossibly to justify a decision that transcends the statute, the entire question is one of interpretation.
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