The Return of Context? Society of
Composers, Authors and Music
Publishers of Canada v.
Entertainment Software
Association, 2022 SCC 30
Paul Daly September 9, 2022
Since its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65,
[2019] 4 SCR 653 in December 2019 (and a couple of companion decisions released the same
month), the Supreme Court of Canada has done nothing in respect of the standard of review of
administrative action. And, it must be said, it has done it exceptionally well.
This summer, the Court has ventured back into the territory it covered in Vavilov, in its decision
in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software
Association, 2022 SCC 30. Time will tell whether Entertainment Software Association is mostly
“noise” about the Copyright Board of Canada or a “signal” about the expansion of correctness
review and the return of contextual analysis. But there is little doubt that the majority’s analysis
relies on context in order to permit more wide-ranging correctness review.
The underlying issue in this case was whether the Copyright Board had erred in determining that
there is a separate ‘making available’ right in Canadian copyright law. The Board had found that a
right to payment exists where a recording is ‘made available’ for download in an online repository
(think iTunes). On judicial review, the Federal Court of Appeal found that the Board’s decision was
unreasonable. On appeal, the Supreme Court agreed, the majority (per Rowe J) concluding that
the Board was incorrect, the minority (per Karakatsanis J) applying the reasonableness standard
and finding the Board’s decision unreasonable. There is much of interest in the decision (see
e.g. Howard Knopf), including a discussion of international law, to which I will return. In this post,
I focus on standard of review.
Writing for the majority, Rowe J applied the correctness standard. In a previous era of Canadian
administrative law, the Court held that correctness applies to the review of interpretations of law
by the Board: Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers
of Canada, 2012 SCC 35, [2012] 2 SCR 283. In obiter in the Federal Court of Appeal, Stratas JA
argued that Rogers is consistent with Vavilov, teeing the issue up for the Court. Notably,
however, none of the parties before the Court argued for reasonableness review.
This matter involved the interpretation by the Board of its home statute, the Copyright Act. The
question of whether the Act protects a ‘making available’ right did not fall into any of the
correctness categories in Vavilov, either on the “institutional design” branch or “rule of law”
branch. As this was a judicial review, not an appeal, the appellate standards of review could not
apply on the basis of “institutional design”. And as the question involved the interpretation of the
Board’s home statute the “rule of law” was not engaged: it was not a constitutional question, a
question of overlapping jurisdiction between administrative decision-makers or a question of
general importance to the legal system.
But in Vavilov, the majority refused to “definitively foreclose” the recognition of additional
correctness categories (Vavilov, at para. 70). Rowe J held that this was a “rare and exceptional”
case where it was “appropriate to recognize a new category of correctness review”, namely “when
courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a
statute” (at para. 28). Questions of the interpretation of copyright law can arise on judicial review
of decisions of the Board (at the Federal Court of Appeal) but also in the context of actions to
enforce copyright heard in the Federal Court (with a right of appeal to the Federal Court of Appeal).
This concurrent jurisdiction was enough, Rowe J held, to require the application of the appellate
standards of review to decisions of the Board. This way, questions of copyright law will invariably
be subject to correctness review in the Federal Court of Appeal regardless of whether the question
is posed in a Board proceeding or an action in Federal Court in the first instance.
Rowe J provided several reasons why applying the correctness standard in such circumstances
“accords with legislative intent and promotes the rule of law” (at para. 28).
Legislative Intent
In terms of legislative intent, Rowe J commented that Vavilov’s presumption of reasonableness
review “no longer applies” (at para. 30) in a situation where “the legislature expressly involves the
court in the administrative scheme”:
When the legislature enacts a statute that gives concurrent first instance jurisdiction to courts and
administrative bodies, the legislature expressly involves the courts. Like legislated standards of
review and statutory appeal mechanisms, concurrent first instance jurisdiction signals a legislative
intent for judicial involvement. By conferring such jurisdiction, it should be inferred that the
legislature wanted to subject those decisions to appellate standards of review (at para. 31).
Rowe J does not quote Vavilov at length and, as it happens, there are some inconvenient details
in the relevant passages. Paragraph 24 of Vavilov is the one in which the presumption of
reasonableness review is established:
Where a legislature has created an administrative decision maker for the specific purpose of
administering a statutory scheme, it must be presumed that the legislature also intended that
decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that
come before it. Where a legislature has not explicitly prescribed that a court is to have a role in
reviewing the decisions of that decision maker, it can safely be assumed that the legislature
intended the administrative decision maker to function with a minimum of judicial interference.
In Entertainment Software Association, Rowe J adds two glosses to paragraph 24 of Vavilov: the
grant of jurisdiction must be “exclusive” (a term which does not appear in Vavilov); and the
legislature does not need to “explicitly prescribe[] that a court is to have a role in reviewing the
decisions of that decision maker” (my emphasis), rather, it is enough to “expressly involve[]” the
courts in the “administrative scheme” (at paras. 30, 31).
Furthermore, in Vavilov, the majority held that departures from the presumption of reasonableness
review could be justified only where there is “clear” statutory language to that effect. But the term
“clear” does not appear in the standard of review portion of Entertainment Software Association.
Had Rowe J applied a “clarity” test, it is doubtful that it would have been satisfied here, as
Parliament did not express any view on standard of review in the Act or elsewhere, still less a
“clear” view. As Karakatsanis J rightly pointed out in her minority reasons:
[T]he Copyright Act,R.S.C. 1985, c. C-42, gives no clear signal of legislative intent regarding the
applicable standard of review. Vavilov states that the legislature can provide this signal in two
ways: it can explicitly prescribe the standard, or it can provide a statutory appeal mechanism
(para. 33). Concurrent jurisdiction between a tribunal and a court was before the Court
in Vavilov but was not identified as an analogous signal of legislative intent requiring correctness
review. Here, there is no legislated standard of review, statutory appeal mechanism, nor any other
analogous provisions. Legislative choice “pulls in two directions” — the absence of these “clear
signals” is telling (Vavilov,at paras. 39 and 49).It follows that a sixth category cannot be
established on the basis of Parliament’s intent (at para. 131).
I would go further. In Vavilov, the majority made clear that statutory provisions which “address
procedural or other similar aspects of judicial review in a particular context…do not authorize the
application of appellate standards” (at para. 51). In other words, oblique references to the role of
the courts are not enough to require the use of appellate standards: “appeal” is the magic word.
If this is so, it is jarring that the creation of concurrent jurisdiction, which has nothing to do with
judicial review, can be construed as legislative intent to require the application of the appellate
standards of review.
The strength of Vavilov, as far as the selection of the standard of review was concerned, lay in the
establishment of simple rules for identifying the applicable standard without reference to context:
“appeal” or a legislated standard of review were the only means of signalling the application of
appellate standards of review. Entertainment Software Association departs from Vavilov in several
subtle respects and undermines the simplicity of the Vavilov framework by inviting courts to take
a much more holistic view of legislative intent.
The Rule of Law
Rowe J was concerned that deferential review of the Board’s interpretations of law could create
legal inconsistencies which would be “antithetical” to the rule of law: it would potentially subject
the same issue to a different standard of review depending on the forum deciding the issue in the
first instance, which could lead to “conflicting statutory interpretations” (at paras. 33-34) (e.g.
reasonableness in the Federal Court of Appeal on an interpretive issue arising before the Board
but correctness in the same court on any legal issue decided by the Federal Court).
Moreover, Rowe J held, this scenario is different in rule of law terms from discord within an
administrative agency. In Vavilov, the majority refused to recognize “persistent discord” as
justifying correctness review. But for Rowe J the three rationales offered for this reticence
in Vavilov lose their gravitational force where the “discord” is between different decision-makers.
First, “when there is concurrent first instance jurisdiction, the legislature has expressly involved
the courts in the interpretation of a statute” (at para. 37). This is a curious response to include
under the heading of the “rule of law”, as it makes an observation about legislative intent. The
objections I offered above apply again here. I would note in addition that it is telling that Rowe J
here refers to paragraph 37 of Vavilov, which is explicitly about statutory appeals, not concurrent
jurisdiction or oblique indicators of legislative intent.
Second, this correctness category can be “defined with precision” and will apply in “rare”
circumstances (at para. 39). Here I recall the objection I made to the Rogers decision a decade
ago:
[C]lever counsel will undoubtedly argue before provincial and federal courts that the existence of
a private right of action negates the deference owed to interpretations of a home statute. After
all, in an action, a provincial superior court or the Trial Division of the Federal Court will be called
upon to answer any questions of law arising, potentially the same questions addressed by the
tribunal in its regulatory functions. As with the Copyright Act, the Competition Act creates a private
right of action which may overlap with the jurisdiction of the Competition Tribunal. Securities
legislation in the provinces often does the same. Doubtless, counsel for the applicant in judicial
review cases will closely parse the statute book in order to find “shared jurisdiction”. Really creative
counsel might even argue that public law duties which can ground actions against public bodies in
negligence also create “shared jurisdiction”. Working all of this out will be complicated.
Now that statutory appeals (e.g. in competition and securities matters) require correctness review
on questions of law, the potential for some of this mischief has been reduced. Nonetheless, this
issue was litigated before Vavilov and in the few weeks since Entertainment Software Association,
has already been raised, in AbbVie Corporation v. Canada (Health), 2022 FC 1209, as potentially
reversing settled law; see also the ‘seductive’ argument made in Ville de Brossard c. Ville de
Longueuil, 2022 QCCA 1139. Just because the Court says the new category applies in “rare”
circumstances does not mean counsel and lower courts will agree.
Third, reasonableness review cannot safeguard the rule of law. The majority in “Vavilov offered
guidance as to how to manage persistent discord within administrative bodies” but aside from a
reference in paragraph 112 of Vavilov gave “little guidance on managing differing decisions
between courts and tribunals” (at para. 38). I agree that more could have been said
in Vavilov about stare decisis as between courts and tribunals, but the lower courts have attempted
to establish some general principles about the proposition that “a binding and material precedent
will place a limit on what is reasonable in the circumstances” (at para. 128, per Karakatsanis J;
see e.g. Canada (Attorney General) v. National Police Federation, 2022 FCA 80). And as a jurist
with considerable expertise in relation to stare decisis, Rowe J could have offered some thoughts
in Entertainment Software Association! In any event, I offer the same objection to this point as I
offered to Stratas JA’s discussion in the court below of the standard of review of decisions of the
Board:
In terms of consistency and certainty, the mere possibility of divergent approaches within an
administrative decision-making structure to a particular question does not, on its own, require
correctness review. Rather, where there is a departure from a previous decision or prior practice,
the administrative decision-maker must justify such a departure. Translated into the Copyright
Board-Federal Court-Federal Court of Appeal conundrum, the Vavilovian answer is that the
Copyright Board may indeed depart from Federal Court jurisprudence, but would bear a heavy
justificatory burden in doing so (with the Federal Court of Appeal charged with determining if the
burden has been discharged); and, meanwhile, the Federal Court (and Federal Court of Appeal)
would have to be mindful in its jurisprudence of the Copyright Board’s preferred approach.
Whereas Vavilov was concerned with inconsistencies which would undermine the integrity of the
legal system, Entertainment Software Association is concerned with the potential for
inconsistency. There is no actual inconsistency (or any example of which I’m aware) between the
courts and the Board on the interpretation of copyright law. If potential inconsistency and the
resultant risk of discord is the trigger for rule of law concerns and, thus, the application of the
correctness standard, the door to correctness review is more open than I thought it was.
Admittedly, however, my emphasis since Vavilov (e.g. here) on the need for judicially imposed
uniformity to be required in order to trigger correctness review might have been misplaced (see
also my post on Sullivan).
Did Vavilov Foreclose the Recognition of this Correctness Category?
There is one other aspect of the debate between the majority and minority which is worth noting.
Karakatsanis J argued that concurrent jurisdiction could not be recognized as a correctness
category:
The establishment of new categories was explicitly reserved for possible circumstances the Court
could not realistically foresee. It is “unrealistic” to suggest that the Court’s own
precedent represents a “possible set of circumstances” that it could not “have contemplated” (at
para. 124).
Indeed, the majority in Vavilov was able to be quite clear when it was excluding issues from the
new framework: note the treatment at paragraph 55 of Doré v. Barreau du Québec, 2012 SCC 12,
[2012] 1 SCR 395, for example.
That said, it is also clear from Vavilov that the compatibility of any precedent with
the Vavilov framework falls to be assessed by reference to, well, the Vavilov framework (Vavilov,
at paras. 143-145). Hence Rowe J’s rejoinder:
When this Court wanted to reject the possibility of a certain correctness category, it did so
expressly: see Vavilov, at paras. 71-72. Concurrent first instance jurisdiction was not discussed
in Vavilov. Accordingly, I seek to give effect to Vavilov by considering whether treating concurrent
first instance jurisdiction as a new correctness category furthers the framework and principles
in Vavilov (at para. 42).
I do agree with Karakatsanis J that it is a little strange to recognize a new correctness category so
soon after the “exhaustive” analysis of the standard of review in Vavilov (at para. 122).
Nonetheless, the analysis in Entertainment Software Association should be judged, as Vavilov itself
suggests, by reference to the majority reasons in Vavilov and its likely future consequences. I do
not think that the recognition of correctness categories should be influenced, one way or another,
by what the judges in the majority in Vavilov might have had in mind when they signed off on the
reasons.
Implications
As the reader will readily surmise, I do not agree with the application of the correctness standard
to decisions of the Board. Yet, truth be told, I do not find the outcome especially surprising. Many
copyright lawyers, on and off the record, are sceptical of the Board’s ability to engage in statutory
interpretation. Outside the Board, therefore, this decision is likely to be welcomed. For my part, I
have been banging this particular deference drum for a decade, to no avail, so perhaps my remarks
on Rowe J’s analysis can safely be dismissed as the latest cavillings of a inveterate crank.
Whatever about the Board, however, I am less sanguine about the approach taken to reach the
correctness review conclusion in this case. As I have outlined above, the modifications to
the Vavilov framework are subtle, but important. In terms of institutional design, a wider range of
factors than those set out in Vavilov may be taken into account in determining the role “legislative
intent” indicates for the courts in judicial review cases. As far as the rule of law is concerned, a
more hands-on judicial approach is justifiable whenever there is potential for inconsistent
application of legal norms: correctness review is not limited to situations where a uniform answer
is required to safeguard the integrity of the legal system.
Moreover, although Entertainment Software Association is a case about the recognition of an
additional correctness category, the subtle but important modifications to “institutional design”
and the “rule of law” apply with just as much force to the scope of the existing correctness
categories. These principles underpinned the Vavilov framework for the selection of the standard
of review. It follows that the scope of the correctness categories should be consistent with the
principles underlying them. For example, the category of “overlapping jurisdiction” could be
expanded to cover situations where “one administrative body has interpreted the scope of its
authority in a manner that is [potentially] incompatible with the jurisdiction of another” (Vavilov,
at para. 64, my addition; see also here). References to the “proper functioning of the justice
system” (Vavilov, at para. 59) in respect of the category of questions of law of general importance
to the legal system might have to be understood to encompass the deleterious effects
of potential inconsistency: this could particularly arise in respect of the interpretation and
application of common law norms by administrative decision-makers. And I am much less confident
than I was before that Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 remains good
law: a more holistic view of legislative intent and a broader view of the need for judicial intervention
to guard against potential inconsistency in the treatment of legal norms could conceivably justify
an expansion of the “constitutional questions” category to include the compatibility of an
administrative decision with the Charter of Rights and Freedoms. Hence the force of Karakatsanis
J’s charge that the majority’s approach will “open the door to endless litigation concerning possible
exceptions to the reasonableness presumption” and “erode the presumption of reasonableness in
all standard of review cases going forward”, which is “precisely what Vavilov aimed to avoid” (at
para. 135).
These thoughts are tentative, of course. As I mentioned at the outset, only time will tell
whether Entertainment Software Association is “signal” or “noise”. Here is another tentative
thought. Taken with Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, Entertainment
Software Association indicates that legislative intent has become the meta-principle of
the Vavilov framework: the use of the magic word “appeal” in Abrametz justified the application
of the Vavilov framework even though in Vavilov itself the majority explicitly excluded procedural
fairness issues from its purview; and Rowe J’s justification for correctness review in Entertainment
Software Association relied heavily on what Parliament might have intended by creating concurrent
jurisdiction. As a matter of first principles, I would be happy for legislative intent to play a key role
in the selection of the standard of review: I laid out my argument to that effect in A Theory of
Deference in Administrative Law: Basis, Application and Scope (2012). But as a matter
of pragmatically implementing the Vavilov framework, which is a compromise designed to achieve
an “overlapping consensus” amongst lawyers who have different views of the applicable first
principles, I am much less convinced. As I argued in A Theory of Deference, respect for legislative
intent involves a consideration not just of the extent of the authority delegated by a given statute
but also reference to the “practical justifications” for delegation, including expertise. In Vavilov,
expertise and other contextual factors were shunted out of the framework in order to promote
simplicity. But if the turn to legislative intent proves decisive, the pressure to take account of
context once more will mount significantly. Again, time will tell. Perhaps Entertainment Software
Association will prove to be a ticket good for the Copyright Board of Canada only and not provide
a general licence to consider context and expand Vavilov’s correctness categories.
For more on the Supreme Court’s standard of review summer, see Mark Mancini here (and the
newsletter links therein).
New Correctness Category: The
SCC Departs from Vavilov in SOCAN
BY ALEXANDRA ROBBINS · NOVEMBER 7, 2022
The first installment of this post addressed the statutory interpretation
question in Society of Composers, Authors and Music Publishers of Canada v
Entertainment Software Association, 2022 SCC 30 [SOCAN]. The entire court
was in agreement on the issue, and this was unsurprising given the Copyright
Board of Canada’s (the “Board”) blatant departure from the well-settled
approach to statutory interpretation.
The administrative law question, however, gave rise to a heated disagreement
at the Supreme Court of Canada (“SCC”). This disagreement hinged upon the
correct way to adhere to Canada (Minister of Citizenship and Immigration) v
Vavilov, 2019 SCC 65 [Vavilov], a critical administrative law case from three
years prior.
The Standard of Review Question
The Promise of Vavilov
The promise of Vavilov was bold—to set out a comprehensive approach to
reviewing administrative decisions (Vavilov, para 17). In Vavilov, the SCC held
that decisions shall be presumptively reviewed for reasonableness, save for
five exceptions where the correctness standard will be applied in order to
accord with legislative intent and/or the rule of law (Vavilov, para 5). These
exceptions are (Vavilov, paras 34, 36, 55, 58, 63):
 Cases where the correctness standard is required by law
 Cases where statutory appeal mechanisms are in place
 Constitutional questions
 General legal questions of central importance to the entire legal
system
 Questions regarding the jurisdictional boundaries between
administrative bodies
Reasonableness is the lower standard wherein a court merely looks to see if
the administrative decision was “transparent, intelligible and justified”
(Vavilov, para 15). In other words, did the decision fall within the reasonable
array of outcomes available to the administrative body (Vavilov, para 83)?
Correctness is more stringent and allows for greater judicial involvement
(Vavilov, 205). It allows the court to ask whether or not it would have made
the same decision as the administrative body, if in its place (Vavilov, paras 15,
205).
In Vavilov, the court also noted that while they “would not definitively
foreclose the possibility that another category could be recognized as
requiring a derogation from the presumption of reasonableness review in a
future case […] the recognition of any new basis for correctness review would
be exceptional [emphasis added]” (Vavilov, para 70).
3 Years Later, 1 New Category
Only three years post-Vavilov, the majority in SOCAN found that this was one
of those exceptional cases (SOCAN, para 43). Where pre-Vavilov, decisions by
the Board would have enjoyed correctness review, post-Vavilov these
decisions did not fit into any of the five enumerated exceptions to the
reasonableness standard (SOCAN, paras 23, 26). The majority chose to carve
out a sixth category for correctness review: cases where administrative bodies
and courts have concurrent first instance jurisdiction over a legal issue in a
piece of legislation (SOCAN, paras 28).
With respect to legislative intent, the majority held that since Parliament
provided concurrent first instance jurisdiction of the Copyright Act, RSC 1985,
c C-42 [the Act] to the Board and the courts, it intended to involve the
judiciary and therefore subject Board decisions to correctness review (SOCAN,
paras 30-32). Reasonableness was therefore rebutted. With respect to the rule
of law, the majority held that correctness review would be necessary to
prevent inconsistencies (SOCAN, para 33). Specifically, Justice Rowe noted
that courts and the Board could reach different and conflicting conclusions on
the interpretation of the Act (SOCAN, para 35). Additionally, courts would be
placed in a strange situation wherein they would decide some issues de
novo or anew, but also decide those same issues on a much lower
reasonableness standard if the case was first handled by the Board (SOCAN,
para 34).
Justice Karakatsanis, although concurring on the statutory interpretation
issue, went on to write a scathing dissent of the majority’s adoption of a new
correctness category. She wrote, “by creating a new correctness category only
three years after a majority of the Court set out a comprehensive framework,
my colleague’s conclusion undermines Vavilov’s promise of certainty and
predictability. His approach shows no fidelity to the majority’s reasons
in Vavilov [emphasis added] […]” (SOCAN, para 117).
With respect to the majority’s take on the rule of law, Justice Karakatsanis,
joined by Justice Martin, held that the rule of law was more threatened by a
lack of adherence to Vavilov than unavoidable inconsistencies in statutory
interpretation, as highlighted by the majority (SOCAN, paras 129-130). With
respect to the legislative intent issue, the concurring opinion noted that as
per Vavilov, Parliament may indicate their intended standard of review
through either explicit prescription or a statutory appeal mechanism (SOCAN,
para 131). Since the legislature did neither of these two things via the Act, and
since concurrent first instance jurisdiction is not one of the enumerated
indicators, Justice Karakatsanis found that this was insufficient to justify a
conclusion that Parliament “intended” the judiciary’s involvement by way of
correctness review (SOCAN, para 131).
The concurring opinion also relied heavily on the fact that in Vavilov, the court
granted intervention to a great deal of parties and purported to extensively
consider the administrative law landscape prior to the creation of its five
categories (SOCAN, paras 121-122). The SCC in Vavilov stated (para 69):
This framework is the product of careful consideration undertaken following
extensive submissions and based on a thorough review of the relevant
jurisprudence. We are of the view, at this time, that these reasons address all of
the situations in which a reviewing court should derogate from the presumption
of reasonableness review [emphasis added].
As noted by Justice Karakatsanis, this “thorough review” included a prior
case, Rogers Communications Inc v Society of Composers, Authors and Music
Publishers of Canada, 2012 SCC 35 [Rogers], which applied correctness review
to a decision of the Board (SOCAN, para 117). The court
in Vavilov had Rogers before it, cited Rogers in its decision at para 48, and yet
excluded concurrent first jurisdiction as a sixth category for correctness
review (SOCAN, para 117). In Justice Karakatsanis’ view, this was a deliberate
overturning of Rogers, as the majority in Vavilov went on to acknowledge that
its decision “depart[ed] from the Court’s existing jurisprudence on standard of
review in certain respects” (SOCAN, para 125; Vavilov, para 70).
Analysis: The Majority’s Approach Is an Unacceptable Departure From Stare
Decisis
On its merits, the majority’s justification for applying correctness review to
Board decisions is persuasive. With respect to the rule of law, it is clear that
correctness review would promote legal consistency—a key element of the
rule of law. Justice Karakatsanis’ rebuttal to this point is merely that
inconsistencies can never be eradicated in full (SOCAN, paras 129-130). While
this is true, it does not mean that they should not be avoided wherever
possible. With respect to legislative intent, it is also evident that in providing
concurrent first jurisdiction over the Act, Parliament did not intend to isolate
the Board’s activities from judicial involvement. Although Justice Karakatsanis
rightfully notes that this particular method of demonstrating legislative intent
was not contemplated in Vavilov, it is sufficiently analogous to the two
examples enumerated in Vavilov and in principle, accords with the underlying
question of whether or not Parliament intended to involve the judiciary in
administrative decisions.
Despite the majority’s sound articulation of the benefits of correctness review,
this cannot be examined in a vacuum. One must zoom out and re-situate the
discussion within the critical jurisprudential context. Vavilov purported to set
out an exhaustive regime for years to come. In doing so, it very clearly had
access to jurisprudence wherein correctness was applied in cases of
concurrent first jurisdiction. This is fatal to the majority’s decision.
Irrespective of the merits of correctness review in such cases, the SCC
in Vavilov had the opportunity to carve out a sixth category but did not. In
having the relevant case law before it and choosing not to act on it, it is
reasonable to infer that the SCC declined to treat cases of concurrent first
jurisdiction as worthy of correctness review. In other words, although the
court did not explicitly exclude such categories, it effectively did so by
omission. Any other interpretation effectively undermines the court’s own
competence and suggests that it is capable of such a glaring oversight.
Unfortunately, I agree with Justice Karakatsanis’ assessment that Justice
Rowe’s decision will “not be without consequences” (SOCAN, para 135). She
predicts that “not only will [the decision] open the door to endless
litigation concerning possible exceptions to the reasonableness presumption,
it will erode the presumption of reasonableness in all standard of review cases
going forward [emphasis added]” (SOCAN, para 135).
Ultimately, the SCC should not develop a habit of purporting to clarify legal
approaches and then re-complicating them soon afterwards. The court should
adhere to the principle of stare decisis and stand by its own decisions. This
ensures that sound decisions are made the first time around.