Category Archives: Separation of Powers

Precaution, delegation and aquaculture regulation – Morton v DFO Part 2

“I accept the undisputed evidence that there is some risk posed to Fraser River sockeye from diseases on salmon farms, but I cannot make a determination as to the precise level of risk. Therefore, precaution would suggest assuming that the risk is not insignificant.”[1]

This quote could have been taken directly out of the recent Federal Court decision of Morton v Canada (Fisheries and Oceans) since the issues address by that case are closely related to the ones in front of the Cohen Commission of Inquiry (Cohen) 3 years before.[2] In fact Justice Rinnie recognized this context.[3] It seems, however, that the Department of Fisheries and Oceans (DFO) did not head the wise words of Commissioner Cohen and continued to treat some serious salmon disease – specifically piscine reovirus (PRV) and heart and skeletal muscle inflammation (HSMI) disease – carelessly. But ignoring an issue does not make it go away. Thankfully for the vigilance of Ms. Morton, DFO will now have to rethink some of its approach to aquaculture. In Part 1 of this post, I explored the issues of the standard of review, the precautionary principle, and the reasonableness of the aquaculture fish transfer licence conditions. In this Part, I look at the issue of illegal sub-delegation of discretionary powers, especially in this case when discretion was delegated to the industry. I reproduced the background section of Part 1 below for ease of reference.

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Judicial (in)activism

I would encourage people to read the About page before diving into this first blog post, especially the Disclaimer section… Now that that is done, enjoy!

Judicial (in)activism

Many commentators (often conservatives – and I use that term in its wide sense not solely its political or partisan sense – but also people who [over]value the sovereignty of Parliament) have critiqued our courts, especially the Supreme Court of Canada (SCC), of indulging in judicial activism. This was particularly true after the advent of the Canadian Charter of Rights and Freedom in 1982. These criticisms have resulted in an increased deference to the two other branches of government (legislative and executive) in public law. The Khadr 2010[1] decision is a perfect example. This trend is not healthy for our judicial system and I intend to show why in this post.

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