It is the time of the year when people get their rainbow flags out and celebrate sexual diversity. This weekend will be pride in Toronto with all the glitter and the shirtless men it entails. There is a lot of debate surrounding the political aspect of pride, or lack thereof, but that’s not what I want to talk about. I don’t mind pride as it is: a giant queer festival (I have issues with it on some level but I will not explore them here). I usually just let myself get carried by the atmosphere and let the politics behind for a time. Nevertheless, I thought it was a good time to see were we, Canada, were on trans issues (legally speaking). Two years ago, I lamented the foreseeable death of Bill C-279 in a post. The bill was revived at the beginning of the current session of Parliament, but sabotaged in committee with a slew of bathroom panic arguments. Now it will likely die (again), only to be brought back if the next government, after the fall election, actually values the lives of trans people. From that point, let’s see what has happened and will happen for trans rights in Canada.
“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.”
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. In fact Justice Rinnie recognized this context. 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.
If you have ever spent any significant amount of time on the west coast, you know how important and contentious of an issue salmon fishery is. Salmon fishery is part of the culture of many First Nations and coastal communities. It is a considerable industry, both in terms of commercial fisheries and aquaculture. Its future is uncertain as stocks seem to fluctuate beyond the comprehension of the Department of Fisheries and Oceans (DFO). There is no shortage of causes (diseases, pollution, poor management, climate change, etc), but as the Cohen Commission of Inquiry (Cohen) concluded, none is dominant. Among them is the risk caused by diseases brought in the salmons’ ecosystem through aquaculture. This particular risk is plague by a familiar environmental policy issue: scientific uncertainty. However, as Cohen found, this uncertainty does not in fact diminishes the risks. Last week, the Federal Court rendered a decision specifically on this issue in Morton v Canada (Fisheries and Oceans), a decision that provide some much needed follow up on Cohen’s aquaculture conclusions. In part one of this two parts post I’ll look at the question of judicial review of a strongly circumscribed ministerial discretion, and the use of the precautionary principle in reasonableness review. In the second part I’ll look at the question of sub-delegation of regulatory requirements to industries.
Environmental litigation often brings in the popular imagination a battle between some big polluting corporations and marginalised people abandoned by the state (the movie Erin Brockovich comes to mind). Those cases do exist, but the majority of environmental law is operationalized by government agencies balancing competing interests, usually economic development with environmental protection. This often results in a compromise: allowing a polluting activity, but with some mitigation measure to limit the environmental effects. But what happens when the two competing interests in front of the executive are environmental protection? This is what the Environmental Review Tribunal of Ontario (ERT) had to deal with in the case Alliance to Protect Prince Edward County v Director, Ministry of the Environment, ultimately largely upheld by the Court of Appeal. This case presents the interesting issue of balancing the need for renewable energy and the impacts such a project can have on the environment, such as the endangered Blanding’s turtle.
J’ai l’impression que la grève étudiante de 2012 qui a évoluée en mouvement populaire généralisé ne s’est terminée qu’hier. Cette impression me vient peut-être du fait qu’aucune solution permanente n’a été mise de l’avant pour régler les problèmes sous-tendant cette crise. Bien que la grève étudiante présentement en cours n’a pas la même envergure que celle de 2012, elle représente en partie le malaise de la société face aux compressions budgétaires de l’État au nom de l’austérité et du sacro-saint déficit zéro. Les étudiants en grève ne le sont pas parce que le gouvernement à décider d’augmenter les frais de scolarité ou de couper dans le programme de prêts et bourses, mais bien pour protester les politiques néo-libérales du gouvernement Couillard. Cette grève est aussi accompagnée de manifestations populaires et syndicales sur divers sujets reliés au mécontentement de la population face aux politiques gouvernementales telles que les coupes dans les programmes sociaux et le projet d’oléoduc d’Énergie Est.
This winter the Supreme Court (SCC) handed down a decision in the Carter case on the constitutionality of prohibiting assisted dying. This judgement is part of a series first started in PHS Community Services Society (safe drug injection sites) and continued in Bedford (sex work) on the expansion of the right to life, liberty and security of the person. When the Court of Appeal handed its decision upholding the assisted dying ban, I commented on this blog on how, even if the plaintiffs won at the Supreme Court (which they did, unsurprisingly for people who follow constitutional law and/or the issue), the result would be limited to being permitted to exercise a right instead of truly recognizing the equality of the group claiming this right. This post is in part of follow up on my initial thoughts and represents some of my reflections on the advancement of the right to life, liberty and security (section 7 of the Charter), and the fall of the right to equality/non-discrimination (section 15 of the Charter).