Simon's Megalomaniacal Legal Resources

JR - SOR - Exceptions - Constitutional (2)

. Toth v. Canada (Mental Health and Addictions)

In Toth v. Canada (Mental Health and Addictions) (Fed CA, 2025) the Federal Court of Appeal allowed an appeal of an unsuccessful JR, that against decisions "reiterating the reasoning of the notices of intent to refuse" "requests to Health Canada under subsection 56(1) [SS: 'Exemption by Minister'] of the CDSA for exemptions from section 4 of the Act to allow them to possess, transport, and consume psilocybin mushrooms for a PSAP training program".

Here the court considers the JR SOR for Charter issues: 'correctness' for whether the Charter "is engaged", and then 'reasonableness' for it's actual application:

[16] The Supreme Court of Canada issued its decision in York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (York) on June 21, 2024, after the parties’ memoranda of fact and law had been filed in this appeal. As York provided guidance on the question as to when a decision maker must address Charter arguments, counsel provided supplementary submissions to this Court regarding its implications for this appeal.

[17] York confirmed the two-step approach for determining Charter issues as applied by this Court in Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166, at paragraphs 32-34: the standard for determining whether the Charter is engaged is correctness, and the standard for assessing the decision maker’s weighing of Charter values is reasonableness.

[18] Writing for the majority in York, Rowe J. held that the question of engagement raises "“a constitutional question that requires a final and determinate answer by the courts,”" and whether the Charter does or does not apply is "“one that will apply generally and is not dependent on the particular circumstances of the case.”" Vavilov’s category of "“other constitutional matters”" which rebut the presumptive standard of reasonableness, "“should not be unduly narrowed”" (York¸ at paras. 62, 65 citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 55 [Vavilov]).

[19] In light of York, the question of whether section 7 of the Charter is engaged by the requests is assessed on a correctness standard. If the Charter is engaged, whether the Minister adequately balanced the Charter interests with the objectives of subsection 56(1) and the scheme of the CDSA is assessed on a reasonableness basis. I agree with Pallotta J. that Vavilov and the standard of reasonableness apply to the assessment of the Decisions from an administrative law perspective.

....

[50] An administrative decision maker need not expressly decide whether a Charter right is engaged by a decision and, if so, how it is balanced (Vavilov, at paras. 9, 91, 94); rather the core question is, in taking into account the nature of the decision and the statutory and institutional context, whether the decision reflects a proportionate balancing of the Charter interests (Doré, at paras. 57, 58, 63).

. Canadian Coalition for Firearm Rights v. Canada (Attorney General)

In Canadian Coalition for Firearm Rights v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed four consolidated appeals, here from dismissals from "six applications for judicial review of the Regulations Amending the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/2020-96 (the Regulations)".

Here the court considers the JR SOR for constitutional (here, Charter) issues:

[31] Finally, there is no dispute between the parties that the standard of review for constitutional questions is correctness: see Union of Correctional Officers – Syndicat des agents correctionnels du Canada – CSN (UCCO-SACC-CSN v. Canada (Attorney General), 2019 FCA 212 at paras. 17 and 21. That being said, I agree with counsel for the AGC that this assertion must be nuanced in light of the recent decision of the Supreme Court in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13 [Société des casinos]. In that case, a unanimous court agreed that correctness applies only to questions of law and constitutionally significant findings of mixed fact and law. However, pure findings of fact that can be isolated from the constitutional analysis are owed deference: Société des casinos at paras. 45 and 97.

. Thibault and Ramsay v. Attorney General of Ontario

In Thibault and Ramsay v. Attorney General of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this challenging part of an Ontario regulation [Towing and Storage Safety and Enforcement Act, 2021 (TSSEA, 2021), Reg. 167/23] on charter and ultra vires grounds. The regulation provision [Reg. 167/23, s.2(d)(i)] challenged disqualified a person from holding a "tow certificate, tow driver certificate or vehicle storage certificate" if "the person is subject to a court order, conditions of parole or an undertaking to a peace officer prohibiting him or her from, ... possessing a weapon".

The court here simply states the JR SOR for 'Charter issues':

[36] The standard of review for the Charter issues is correctness.

. Brisco v. Ontario Civilian Police Commission [IMPORTANT]

In Brisco v. Ontario Civilian Police Commission (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer's JR, here against "a decision of the Ontario Civilian Police Commission, which upheld a hearing officer’s finding that he engaged in misconduct for making a donation to what the hearing officer found to be illegal protests in Ottawa and Windsor" and related penalty.

Here the court nicely states the tricky JR SOR treatment for Charter issues - ie. the correctness exception for 'determination/application' of the Charter, but still the reasonableness standard for Charter 'balancing':

[12] The standard of review for whether the Commission failed to recognize the Charter value of freedom of assembly is correctness: York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, 492 D.L.R. (4th) 613, at paras. 63, and 69. However, the parties agree the balancing of Charter values is reviewable on a reasonableness standard: Doré, at paras. 43-54; Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, 487 D.L.R. (4th) 631, at para. 60.