Freedom Convoy protests [Split from All things 2019-nCoV]

[Kirkhill]

It seems that way. The appeal insists that the Governor General was the "sole decision-maker", and that it's her decision that was under review.

Cool. We have our Constitutional Monarchy back.

 

[SeaKingTacco]

Cool. We have our Constitutional Monarchy back.

Sure. Until the Government decides it is inconvenient. That is the benefit of lacking Principles.

 

[Winds]

Sure. Until the Government decides it is inconvenient. That is the benefit of lacking Principles.

New stance seems to be that when decisions are popular, the PM made them as a decisive leader, and when they're not, it was the Governor General who made them as the "sole decision-maker".

 

[Kirkhill]

New stance seems to be that when decisions are popular, the PM made them as a decisive leader, and when they're not, it was the Governor General who made them as the "sole decision-maker".

Concern ---

PM concedes the Primacy of the Governor-General
PM makes a run for the job of Governor-General.

 

[Lumber]

Concern ---

PM concedes the Primacy of the Governor-General
PM makes a run for the job of Governor-General.

All hail King Justinian the First!

 

[brihard]

You seem to like to mischaracterize my statements. What I said was that rather than have the court change the judge's decision (a new decision), as the appeal court often does, they're asking for them to dismiss "the underlying application for judicial review" (a determination that the matter did not need to be reviewed). So, rather than stating that the judge's reasoning was incorrect, they want the appeal court to determine there was never a requirement for judicial review. In the alternative, they want it sent back to the federal court for a new determination... also, rather than having the Federal Court of Appeal make that determination themselves, which they can do.

A trial is the process of resolving a dispute in court, and there are many different types of trials. A judicial review is when an administrative decision is put on trial. This one included facts and arguments brought forth by both the plaintiff and the defence, in court. If they send it back to the Federal Court for a new determination, it may allow the defence to bring new arguments and facts, such as disclosing the 'novel' legal opinion that the federal government relied its invocation of the EA on (a new fact that was the basis for the administrative decision in question), since they want to argue there should be multiple ways to determine 'reasonableness' when reading the EA and the Canadian Security Intelligence Service Act.

Why is the Attorney General's office (the defence in this case) so reluctant to disclose the legal opinion that the EA invocation was based off of? If it provided a legally sound basis for the decision, one'd think it'd be the basis of their defence.

I’m not mischaracterizing anything. You said a couple of things that are factually inaccurate, and I’m correcting them.

Dismissing the underlying judicial review, simply put, would be a reversal of the federal court’s decision. The fact that the language is a bit different because this is administrative law doesn’t change that basic concept. The FC on judicial review granted the substantive relief sought. The government is asking the FCA to reverse it. That, if granted, is changing the FC judge’s decision.

As for trials- a judicial review is not a trial, full stop. There are several different sorts of arguments in court that are not trials. A trial is where evidence is presented by two adversarial parties, and a trier of fact - either a judge or a jury - has to decide to accept what as true in order to determine the fact set to which the law will be applied and a decision rendered. Only that first proceeding where the facts are initially determined is a trial. Administrative law does not have such a judicial fact-finding exercise; the fact set is determined by the administrative body, and everything that follows is a redetermination/review/appeal thereof, depending on the language of the enabling legislation. By the time a judicial review occurs, there has already been a set of facts established from the submitted evidence, that everything subsequent works off of, and to which arguments must conform. Characterizing a judicial review as a ‘trial’ is simply incorrect and shows a s proud misunderstanding of what a trial is and isn’t, and the role the judge in a judicial review plays. Further, a judicial review is far more limited than a trial in what it is able to consider, and what it bases its decisions on.

I hope this helps clear up your understanding of the process going on and what the FCA will and won’t be doing.

 

[Winds]

I’m not mischaracterizing anything. You said a couple of things that are factually inaccurate, and I’m correcting them.

Dismissing the underlying judicial review, simply put, would be a reversal of the federal court’s decision. The fact that the language is a bit different because this is administrative law doesn’t change that basic concept. The FC on judicial review granted the substantive relief sought. The government is asking the FCA to reverse it. That, if granted, is changing the FC judge’s decision.

As for trials- a judicial review is not a trial, full stop. There are several different sorts of arguments in court that are not trials. A trial is where evidence is presented by two adversarial parties, and a trier of fact - either a judge or a jury - has to decide to accept what as true in order to determine the fact set to which the law will be applied and a decision rendered. Only that first proceeding where the facts are initially determined is a trial. Administrative law does not have such a judicial fact-finding exercise; the fact set is determined by the administrative body, and everything that follows is a redetermination/review/appeal thereof, depending on the language of the enabling legislation. By the time a judicial review occurs, there has already been a set of facts established from the submitted evidence, that everything subsequent works off of, and to which arguments must conform. Characterizing a judicial review as a ‘trial’ is simply incorrect and shows a s proud misunderstanding of what a trial is and isn’t, and the role the judge in a judicial review plays. Further, a judicial review is far more limited than a trial in what it is able to consider, and what it bases its decisions on.

I hope this helps clear up your understanding of the process going on and what the FCA will and won’t be doing.

Your definition of trial is a bit off. The judicial review by the Federal Court did involve evidence being brought before the court by two adversarial parties. The judge established the facts and applied the law. Its not an administrative hearing.

Is the Federal Court of Appeal able to render a new determination on matters of law? If so, why would the AG request the matter be sent back to the Federal Court for a new determination, in the alternative that the request to dismiss the initial application for judicial review fails?

 

[brihard]

Your definition of trial is a bit off. The judicial review by the Federal Court did involve evidence being brought before the court by two adversarial parties. The judge established the facts and applied the law. Its not an administrative hearing.

Your understanding of administrative law - what it is and how it works, including what judicial review is - is not what you think it is, but it doesn’t look like I’m going to be able to correct that.

 

[Winds]

Your understanding of administrative law - what it is and how it works, including what judicial review is - is not what you think it is, but it doesn’t look like I’m going to be able to correct that.

Perhaps I have more knowledge of Administrative Law than you think. You also gave a definition of a trial that would encompass the Judicial Review of the EA by the Federal Court, but dismissed it as not a form of trial, because you say so. Do you care to provide an actual definition of a trial? Also, can you answer my previous question about whether the Federal Court of Appeal can overrule Judge Mosley, making a new determination on matters of law?

 

[brihard]

Perhaps I have more knowledge of Administrative Law than you think.

Perhaps you do, but if so, it’s not evident.

You also gave a definition of a trial that would encompass the Judicial Review of the EA by the Federal Court, but dismissed it as not a form of trial, because you say so.

I did not. You’re picking parts of what I said but trying to jam it into your preferred framework. The POEC was not a conventional adversarial proceeding. Although it was indeed mandated to arrive at an understanding of what happened, and there were different sides and factions offering evidence, it was not a mechanism to resolve a legal dispute between two opposed parties, which is inherent in anything that actually is a trial.

Do you care to provide an actual definition of a trial?

Already done to the extent necessary for the discussion at hand.

Also, can you answer my previous question about whether the Federal Court of Appeal can overrule Judge Mosley, making a new determination on matters of law?

The FCA can reverse portions or the entirety of Justice Mosley’s decision, based on either arriving at a different result in a test of reasonableness as it is understood in the administrative law context, or if they find that there was an error of law, as would apply to, e.g., interpretation of the CSIS act definition of “threat to the security of Canada”.

For what it’s worth I could perhaps see portions of it reversed on reasonableness, though I can’t guess the likelihood of that. I don’t personally think there will be reversal on different understanding of law. Justice Mosley wrote a solid decision. I do not believe the government will win on appeal at either FCA or, conceivably, SCC.

 

[Winds]

Perhaps you do, but if so, it’s not evident.


I did not. You’re picking parts of what I said but trying to jam it into your preferred framework. The POEC was not a conventional adversarial proceeding. Although it was indeed mandated to arrive at an understanding of what happened, and there were different sides and factions offering evidence, it was not a mechanism to resolve a legal dispute between two opposed parties, which is inherent in anything that actually is a trial.


Already done to the extent necessary for the discussion at hand.


The FCA can reverse portions or the entirety of Justice Mosley’s decision, based on either arriving at a different result in a test of reasonableness as it is understood in the administrative law context, or if they find that there was an error of law, as would apply to, e.g., interpretation of the CSIS act definition of “threat to the security of Canada”.

For what it’s worth I could perhaps see portions of it reversed on reasonableness, though I can’t guess the likelihood of that. I don’t personally think there will be reversal on different understanding of law. Justice Mosley wrote a solid decision. I do not believe the government will win on appeal at either FCA or, conceivably, SCC.

There was apparently no legal dispute about the reasonableness or unlawfulness of the EA invocation raised by the plaintiff and countered by the defence, which as you say is the hallmark of a trial... if you say so?

The second part of my question was, if the FCA can reverse portions or the entirety of the decision (which you agreed they can), why would the AG not request that remedy? Instead they request (1) that the underlying request for a judicial review be dismissed and, in the alternative, (2) that the matter be sent back to the Federal Court. I suggested that perhaps they wanted the matter sent back to the Federal Court, Canada's national trial court, so they can present new arguments and facts.

 

[brihard]

There was apparently no legal dispute about the reasonableness or unlawfulness of the EA invocation raised by the plaintiff and countered by the defence, which as you say is the hallmark of a trial... if you say so?

You’re not getting it. A trial resolves a specific legal dispute between two adversarial parties, and within a trial the trier of fact determines what the fact set is. You need both aspects. POEC lacked the first one. Different opinions and disagreements by the population at large is not the same as there being a legal dispute at bar in a court. POEC was, very specifically under s.63 of the Emergencies Act, an “inquiry”. That’s a fact finding mission but is not a resolution of a justiciable dispute between two parties. Conversely, and judicial review or subsequent appeal IS a resolution of a justiciable dispute, but is not a fact finding exercise. There is nothing that can be called a ‘trial’ in the inquiry necessitated by use of the Emergencies Act, or any subsequent judicial review or appeal of same.

The second part of my question was, if the FCA can reverse portions or the entirety of the decision (which you agreed they can), why would the AG not request that remedy? Instead they request (1) that the underlying request for a judicial review be dismissed

It’s. The. Same. Thing.

and, in the alternative, (2) that the matter be sent back to the Federal Court. I suggested that perhaps they wanted the matter sent back to the Federal Court, Canada's national trial court, so they can present new arguments and facts.

The fact that Federal Court can serve as a trial court in civil matters does not make a judicial review a trial, not the first time, nor the second time around. Specifically the government has asked for, as an alternative to a complete reversal, the matter to be returned to federal court for a new determination, which would be based on any direction the FCA may find appropriate to give. This isn’t a mulligan on the judicial review process. It would be direction to federal court to take notice of FCA findings on reasonableness and points of law, and to revisit its decision with that applied to the existing fact set. This is a less complete remedy than the government hopes for, but it’s common in appeals for the appellant to stack a couple of requested remedies, with it usually being the case that they want a complete reversal/quashing, or if they can’t get that, the matter gets revisited.

What the government can hope for is for FCA to wholly or partially reverse on reasonableness and/or correct application of law. We won’t see a procedural fairness argument here as you might with some administrative law reviews or appeals, and there’s nothing in this mechanism that gets the government a complete do-over to introduce new facts, because that door closed then the POEC wrapped. Even if they see the matter sent back for redetermination, it’s unlikely they would have much if any scope to even enter new arguments.

Like I said though, I don’t expect the government to win this one.

 

[Winds]

Requesting the underlying application for judicial review to be dismissed is not the same as requesting that the review itself be overruled, with the FCA coming to different conclusions on matters of law. As well, both the CCLA and AG provided new evidence for the judicial review after the formal conclusion of the POEC. Then there was a hearing on the matter by the Federal Court.

 

[brihard]

Requesting the underlying application for judicial review to be dismissed is not the same as requesting that the review itself be overruled, with the FCA coming to different conclusions on matters of law.

I’m unable to understand what part of “an order setting aside the Federal Court’s judgments” you’re struggling with. That is what a reversal, or in your terms ‘overruling’ is. It’s equivalent terminology to when a higher court overturns a lower appellate court decision.

Anyway, it’s no longer clear what claim you’re actually making or what you’re arguing about, so unless some compelling new angle comes up in this discussion, I’ll leave you to however you want to see and understand the situation.