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Administrative - Policy Directives (3). Reichert v. Ottawa Police Service
In Reichert v. Ottawa Police Service (Div Ct, 2026) the Divisional Court allowed a JR, here challenging the refusal of the applicant's request to police to destroy "fingerprints and photographs" obtained under the federal Identification of Criminals Act after the withdrawal of criminal charges.
The court considers an administrative (police department) 'policy' in light of the discretion and issues of fettering which it involves, here in the course of a JR 'reasonableness' assessment:[34] In my view, the Decision, in which the applicant’s request was denied in accordance with the requirements of the Policy, was not reasonable. I draw this conclusion for two reasons.
[35] First, contrary to the respondent’s submissions, the Policy does not set out “a structured, principled mechanism for a case-by-case balancing analysis.” Rather than examine the individual circumstances, the policy bases retention decisions for certain offences entirely on the category of offence the person was charged with. The Policy states that requests should be denied in all cases where an individual was charged with a primary designated offence listed in s. 487.04 of the Criminal Code, regardless of the nature of the allegations, the strength of the evidence, or the reasons why the charge was withdrawn. This is the opposite of an individualized assessment.
[36] Second, while policies such as this can be useful to guide the exercise of discretion and ensure consistency, they cannot replace the exercise of discretion. The Policy appears to do so for certain offences. It does not simply set out factors to consider or criteria to apply. Rather, it dictates when requests are to be granted or denied. For example, the Policy states, “If charges on file are listed as Primary offences, deny the request.”
[37] It is well established that “[a] policy can aid or guide the exercise of discretion under a law, but it cannot dictate in a binding way how that discretion is to be exercised”: Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, 341 D.L.R. (4th) 710, at para. 60. A policy that does so has the effect of fettering the discretion, and decisions that are the result of a fettered discretion are per se unreasonable: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at para. 60; Maple Lodge Farms v. Government of Canada, 1982 CanLII 24 (SCC), [1982] 2 S.C.R. 2, at pp. 6-7; Aubin v. Law Society of Ontario, 2026 ONSC 4377 (Div. Ct.), at paras. 21-23; Stemijon Investments, at paras. 23-34; Vavilov, at para. 130. . Athletes 4 Athletes Foundation v. Canada (National Revenue)
In Athletes 4 Athletes Foundation v. Canada (National Revenue) (Fed CA, 2021) the Federal Court of Appeal considered the role of published 'guidelines' in legal interpretation:[26] The Crown, in paragraph 78 of its memorandum, submits that "“the examples of exclusive purposes referred to in the guidance documents are entirely consistent with the definition of CAAA in the French version of para. 149.1(1)(d) of the Act […]”". There are two points that arise from this statement. The first point is that the French version does not convey a different meaning than the English version. The second point is that the issue is not whether "“the examples of exclusive purposes referred to in the guidance documents are entirely consistent with the definition of a CAAA”" but rather whether the Minister relied exclusively on this list of examples and, therefore, treated it as binding list of acceptable purposes.
[27] In Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, this Court noted:[59] Policy statements play a useful and important role in administration: Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385. For example, by encouraging the application of consistent principle in decisions, policy statements allow those subject to administrative decision-making to understand how discretions are likely to be exercised. With that understanding, they can better plan their affairs.
[60] However, as explained in paragraphs 20-25 above, decision-makers who have a broad discretion under a law cannot fetter the exercise of their discretion by relying exclusively on an administrative policy: Thamotharem, supra at paragraph 59; Maple Lodge Farms, supra at page 6; Dunsmuir, supra (as explained in paragraph 24 above). An administrative policy is not law. It cannot cut down the discretion that the law gives to a decision-maker. It cannot amend the legislator's law. A policy can aid or guide the exercise of discretion under a law, but it cannot dictate in a binding way how that discretion is to be exercised. ....
[34] Since the comments in Stemijon Investments Ltd. that administrative guidance cannot change the law are applicable when the Minister has discretion, they are also applicable when the Minister does not have the broad discretion under the Act to refuse the registration of a CAAA as a RCAAA, other than when the conditions in subsection 149.1(25) of the Act are satisfied. The role of the Minister in determining whether a particular organization qualifies as a CAAA and should be registered as a RCAAA, is to determine whether, based on the application of that organization, it satisfies Parliament’s statutory requirements. The guidance as previously drafted by the CRA cannot bind the Minister nor can it alter the provisions of the statutory definition of a CAAA. . Masters v. Claremont Development Corporation
In Masters v. Claremont Development Corporation (Div Ct, 2021) the Divisional Court makes these comments on the role of policy directives (here in a planning context, regarding the Clergy principle). The case was an appeal involving an over 30 year-old rezoning/subdivision application, the result of which the application was allowed to continued:[6] This appeal requires an appreciation of the difference between a legal principle that must be applied in a prescribed manner, and a policy directive, the application of which is more flexible and amenable to different treatment by those responsible for its promulgation and implementation, depending on the circumstances being addressed.
[7] In its Review Decision the Local Planning Appeal Tribunal made the following determination:The Tribunal finds that the Clergy principle applies in this case and that the applicable policy regime is the one described in paragraphs 57 to 66 of the joint affidavit of Messrs. Given and Cory.[7] [8] The Clergy principle originates in a case bearing the same name.[8] The lands in question were located close to the Lester B. Pearson International Airport (Toronto’s main airport). Airplane noise was a concern. The applications for approval of lands for residential development had been made in July 1989. They were revised during 1994 to reflect ongoing work directed to an amendment to the applicable official plan and, again, in 1996, at the request of the City of Mississauga, with respect to a church site. The official plan amendment (OPA 238) was approved by the Ontario Municipal Board on September 13, 1995 “at the end of a very open and public process, culminating in its testing by parties at a hearing before the [Ontario Municipal] Board.”[9] Despite its approval after the making of the initial applications, the proponent (Clergy Properties) agreed to conform to the policies of OPA 238.[10] Thereafter, on May 1, 1996 a new guideline, “Land Use in the Vicinity of Airports, 7th Edition” was published. Particularly in relation to residential development, it was more restrictive than its predecessor, produced in 1989. The issue in the Clergy case was which of the two guidelines should govern, the one from 1989 which was in place when the original applications were made and remained in place after the approval of OPA 238 or the new guideline brought forward in 1996. The Ontario Municipal Board found that the prevailing policy should be the one in place when the applications were made:
The Board, in determining the policy framework under which an application should be examined, has consistently stated that an application must be tested against the policy documents in place at the date of the application. … In the Board's view, to now depart from this consistent adjudication of matters, would undermine the planning process and bring the integrity of the planning and adjudication process into disrepute.[11]
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