It has been brought to my attention that there has been a new precedent that affects the way that judicial review is interpreted by the divisional court, which is available here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18078/index.do

While it may appear on first glance that this ruling has implications for my case, I do not believe that it does. I am not going to be withdrawing or altering my existing arguments, but I can add the following addendum to clarify my interpretation of the new ruling.

First of all, let us question where the expertise in the matter is. The premise underlying the new basis of review is that the legislature invested decision making authority in the hands of specialized councils, and the judiciary ought not interfere with that. However, the author of the report in question is a police officer that likely has minimal training, and the review was carried out by a civilian oversight panel of “members of the community”. Meanwhile, the divisional court consists of three learned judges with decades of experience, no doubt, between them. The issue at hand is an interpretation of the criminal code. It would be patently unreasonable for the court to defer to the expertise of the civilian oversight body, in this matter.

Second, let us be clear in understanding that the issue at hand is, in fact, a question of upholding the rule of law. The new ruling is not very specific regarding the question of what is of “central importance to the legal system”, but i think that the premise that the police should uphold the law is of pretty central importance to society, in general. I would propose that this is a situation where the correctness exception ought to apply, and that while the recent ruling does not explicitly list issues of the sort, it does implicitly do so, and this is ultimately an oversight. I would hope that the supreme court would interpret the situation as meeting the grounds for exception that are outlined in the case.

However, my interpretation of the ruling is that it is actually mostly merely a shift in semantics. While the ruling does make it clear that the correctness basis is to be utilized carefully, it also presents a long list of examples where the reasonableness basis is to be used that kind of look a lot like correctness reviews, to me. If the difference is procedural, this strikes me merely as an exercise in political correctness. With all due respect to everybody involved, I did not file this review to get into a semantic debate over whether misapplying Storrey to a hybrid offence would be considered to be incorrect, or merely unreasonable. In all honesty, I am not sure that I entirely understand why something would not be considered to be incorrect if it doesn’t fall into a range of possible outcomes, when that range of possible outcomes has one possibility. Nonetheless, this is the strange Carrolian path that the court has set out for us, as it takes us all down the rabbit hole of political correctness.

I will quote the case, only briefly:

” It is evident that both statutory and common law will impose constraints on how and what an administrative decision maker can lawfully decide: see Dunsmuir, at paras. 47 and 74. For example, an administrative decision maker interpreting the scope of its regulation-making authority in order to exercise that authority cannot adopt an interpretation that is inconsistent with applicable common law principles regarding the nature of statutory powers: see Katz Group Canada Inc. v. Ontario (Health and Long Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at paras. 45-48. Neither can a body instructed by legislation to determine what tax rate is applicable in accordance with an existing tax system ignore that system and base its determination on a “fictitious” system it has arbitrarily created: Montréal (City), at para. 40. Where a relationship is governed by private law, it would be unreasonable for a decision maker to ignore that law in adjudicating parties’ rights within that relationship: Dunsmuir, at para. 74. Similarly, where the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable decision will generally be one that is consistent with the established understanding of that standard: see, e.g., the discussion of “reasonable grounds to suspect” in Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006, at paras. 93-98.”  [@ p. 111]

Again - procedural questions aside, it would seem to be that this is a correctness basis by any other name, but if the court insists on calling it a reasonableness basis instead, then we can do that. It really changes nothing in any meaningful, substantive way - it’s just an issue of semantics, of language.

So, I am still requesting a general certiorari on a correctness basis due to the obvious incompetence of the reviewing body, and claim the court has the expertise, not the panel. But, we can cite the rule of law to get to a correctness basis instead, if insisted upon, and we can run ctrl+H  and replace “correctness” with “reasonableness”, in light of para 111, if you insist, too.

I will leave it to the court to sort out my arguments in light of the new precedent.