Failure to Exercise a Discretionary Power

RM v. Scottish Ministers, [2012] UKSC 58 was a relatively straightforward case for the UK Supreme Court. The applicant/appellant is currently detained in a mental health facility under a compulsion order and wishes to apply to the Mental Health Tribunal for an order declaring that he is being held in conditions of excessive security.

The problem is that although the legislation in issue provides for such applications, they are contingent on the patient and his hospital being 'qualified' under the Mental Health (Care and Treatment) (Scotland) Act, 2003. Unfortunately, no regulations have been passed identifying the "qualifying patients" and "qualifying hospitals" for the purposes of such applications. This situation is not likely to last much longer, however.

Interpretations of "Home" Statutes and Deference

Just a very brief note on a couple of recent first-instance decisions that caught my eye. It has been suggested (para. 22) that the Supreme Court of Canada has recently indicated a strong preference for deferential judicial review when decision-makers are interpreting their constitutive or "home" statutes. Nevertheless, the categories of jurisdictional error and general question of law, said to require intrusive judicial review, remain.

The Mayor, Bias, Procedural Fairness, and Democracy

Plenty of cyberink has already been spilled on the removal from office yesterday of Toronto mayor, Rob Ford. Hackland J.'s decision has aroused surprise, support, calls for reform of Ontario's Municipal Conflict of Interest Act, and, worst of all, bad sporting metaphors. While Hackland J.'s conclusions and interpretive approach are perfectly respectable, I do not think they are correct, as I will explain in this post. On first reading, I thought Hackland J.'s findings of fact were damning enough to give Ford little leeway on appeal. I am now not so sure.

To preview my argument, I think that Hackland J.'s interpretation of some of the statutory provisions is questionable and that his interpretive approach does not properly take account of context and the purposes of the Act. I will address the interpretations I disagree with in the context of explaining the facts of the case and then turn my attention to context and purpose. I should note that there are other questions too, in particular, whether the Act applies at all, but I won't address them in this post.

Be-BAPE-A-Lula

One of the more interesting political stories in Québec at the moment involves the new environment minister, Daniel Breton and the Bureau d'audiences publiques sur l'environnement. On a visit to the BAPE's offices in October, Breton allegedly told members of the BAPE that he would telephone the chairperson whenever the BAPE made a recommendation he disagreed with, before demanding their cell phone numbers.

Supreme Court of Canada decision in Kane

Quick and brutal. The webcast of the hearing in Canada (Attorney General) v. Kane, 2012 SCC 64, was barely up on the Supreme Court's website before the appeal was allowed. Only 17 days elapsed between the hearing on November 6 and this morning's per curiam opinion.

Jurisdictional Error, Procedural Fairness and Advocacy by Tribunals

There is much to say about Samatar c. Canada (Procureur général), 2012 CF 1263, a case involving an apparent jurisdictional error, a flagrant breach of procedural fairness, and over-zealous advocacy on the part of an arm of the state.

The Federal Court of Appeal on Inadequate Reasons

The Supreme Court of Canada took the (in my view) reasonable step in Newfoundland Nurses, 2011 SCC 62 of separating procedural review for failure to provide reasons from substantive review for reasonableness. One concern that might be voiced in response is that rolling a procedural right to reasons into substantive review may give too much latitude to administrative decision-makers, resulting in opaque decisions which communicate little or nothing to those affected. Viewed in this light, the approach of the Federal Court of Appeal in Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227 is reassuring.