Alberta Law Review (ALR)
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Selecting a Standard of Review: What Does This Entail Post-Vavilov?
Full text linkConsiderable scholarly and judicial attention has been devoted to the selection of the standard of review in Canadian administrative law. Through generational analysis of the developments and challenges in administrative law, and a comparison of the different standards of review, the article examines the place of Canada (Minister of Citizenship and Immigration) v. Vavilov in the jurisprudential landscape. The article suggests that Vavilov now serves as the new Baker v. Canada (Minister of Citizenship and Immigration), providing practical guidance and a stable framework by simplifying the selection of the standard of review process but requires further refinement by attending to transparency and justification regarding the reweighing of factors and the use of Charter values. Ultimately, this article proposes that Baker and Vavilov together could inform the next generational shift in administrative law: the formal recognition of a general duty to provide reasons
Rethinking the “Rough Sex Defence” in Canada: Replies to Sheehy et al.
Full text linkThis article critiques the arguments advanced by Elizabeth Sheehy, Isabel Grant, and Lise Gotell in their 2023 Alberta Law Review article, “Resurrecting ‘She Asked for It’: The Rough Sex defence in Canadian Courts.” Sheehy et al. trace a rise in both “rough sex” and “sex games gone wrong” defences in cases involving bodily harm and death in Canada and the United Kingdom, equating these defences to an updated version of the “she asked for it” defence. They argue that consent should not be a valid defence for bodily harm resulting from sexual activity unless such harm was unforeseeable, emphasizing that those engaging in violent sex acts should bear the risk of serious injury or death to their partners. Concurring with Sheehy et al. on the gravity of gender-based violence, this article problematizes their broad conflation of Bondage-Discipline, Dominance-Submission, and Sadism-Masochism or Sadomasochism (BDSM), rough sex, and sexual assault. Drawing primarily on queer theory, anti-carceral feminism, and the insights of BDSM subcultures, the authors argue — separately and among other points — that Sheehy et al.’s framing of “rough sex” perpetuates a carceral, paranoid, and partisan approach to sexual justice and stigmatizes BDSM practitioners, scapegoating them for failures in sexual assault prosecutions. Interrogating the limits of their position, this article advocates a more complex understanding of sexual consent, accountability, and harm
Retrenchment, Reform Or Revolution - The Shift to Incentives and the Future of the Regulatory State
Full text linkA shift to incentive-based instruments of regulation is often viewed as a solution to the defects and limits of the traditional regulatory state. This article argues that, although in some contexts incentive-oriented approaches are desirable, there are limits to the use of economics in the regulatory process, particularly with respect to defining the goals of regulation in a pluralist democracy. As well, traditional policy instruments can be altered, evolved or supplemented to allow for belter government. There are many ways that government can bring about basic social change that neither suggest a return to old command and control approaches nor an increased reliance on or deference to economically self-interested market behaviour. It is these alternative approaches that are most promising for advancing the unfinished agenda of the social welfare slate, through a better reconciliation of care with autonomy and choice with community
Rewards in the Legal System: Tenure, Airbags, and Safety Bingo
Full text linkRewards are now used extensively in universities, industry, prisons and many other settings. The author argues that their use should be extended and that sanctions should not be so heavily relied upon. There is, for example, great scope for further exploration and experimentation with rewards in the area of traffic safety. Modest rewards combined with peer pressure may produce desired objectives in certain cases
Aid for Sisyphus: Incentives and Canadian Content Regulation in Broadcasting
Full text linkMeasured against recent developments in Canadian content regulation in broadcasting, claims of an overall shift to incentive-policy instruments seem exaggerated. Nevertheless, even here there are signs of some move away from exclusive reliance on command-and-control type regulation in favour of investment incentives for indigenous programming. In documenting this shift from "sticks to carrots" it is suggested that it would be inappropriate to think in terms of the traditional notions of administrative law fair procedures, although some minimal concept of "orderliness" in applying incentives might be appropriate
Licencing State Misconduct: Revisiting Nasogaluak and Ward
Full text linkA legal right only has meaning if, when the right is infringed, it can be vindicated in some way. Section 24 of the Canadian Charter of Rights and Freedoms (Charter) provides a basis for courts to provide remedies for Charter violations, but the case law demonstrates the need for more robust remedies in the criminal context. Courts have restricted the application and meaning of section 24(1), resulting in an overreliance on stays of proceedings and sentence reductions. These remedies often fall short of censuring state misconduct and providing sufficient vindication. The authors suggest an alternative approach: under section 24(1), criminal courts, where appropriate, should provide monetary compensation to victims of police misconduct at the conclusion of criminal proceedings
Deference and the Administrative-Legislative Paradox in Judicial Review
Full text linkThis article explores the “administrative-legislative paradox”: the tendency for jurists who are least likely to defer to the executive or administrative state on administrative law grounds to be the most deferential to the legislature on constitutional grounds (and vice versa). It relies on Supreme Court of Canada jurisprudence over the past eight years to prove the existence of the paradox and tests four possible hypotheses to explain its occurrence. The article concludes that common to each hypothesis is the division of jurists into those who are philosophically “conservative” and those who are philosophically “progressive.” The article underscores that while these descriptors mean different things within this context than they do in discussing partisan politics, the overlap is no coincidence
The Decline and Fall of the Due Diligence Defence?
Full text linkOver the last two decades, enforcement activity has increased in the realm of environmental and comparable regulatory schemes. This article discusses due diligence as a defence against these prosecutions and its increasing importance for energy companies. It begins with a survey of jurisprudence applying this defence, its public policy origins, and concerns that the defence has been eroding over time. The article then considers the role of the defence going forward and provides practical advice for organizations to better mitigate risks
Vavilov and Generative AI
Full text linkThis article considers whether a decision made by generative artificial intelligence can satisfy the standard of reasonableness set out in Canada (Minister of Citizenship and Immigration) v. Vavilov. Vavilov requires that administrative decisions be justified through reasons that are transparent and intelligible to the affected party. Earlier scholarship, law, and policy have assumed that AI cannot do this because it cannot provide reasons and its inner workings are opaque or uninterpretable. However, new capabilities of large language models challenge this view. Recent experiments show that when prompted with party submissions and relevant legal materials, generative AI can produce persuasive, legally grounded reasons for decisions. The article evaluates two responses: one argues that AI decisions remain unreasonable under Vavilov since their true basis lies in opaque technical processes; the other contends that Vavilov focuses on the cogency of stated reasons, not how they were generated. The article supports the latter position, suggesting that Vavilov leaves open the possibility that AI-generated decisions can be reasonable, provided their reasons meet the decision-making standard applied to human actors
Remedies for Unreasonable Administrative Action after Vavilov
Full text linkThis article comments on Pepa v. Canada (Citizenship and Immigration), arguing that it departs from the Supreme Court’s previous guidance on remedies in an unprincipled manner. The article outlines the remedial framework established in Canada (Minister of Citizenship and Immigration) v. Vavilov, traces its development over the past five years, discusses key departures from the general rule of remittal, and highlights the principles these departures reflect. It then examines the approach to remedies adopted in Pepa. This assessment shows that the Pepa majority’s invocation of the “single reasonable interpretation” exception to the general rule of remittal departs from the core Vavilov values of restraint, deference, justification, and respect for administrative action. In this sense, Pepa does not fit the pattern of principled exceptions seen in earlier cases. Rather, it is a case in which remedial practice and principles are out of alignment. As a result, while Pepa is a strong example of persuasive reasonableness review, its application of the law of remedies should be read with caution