In the fight for Canadian citizenship, Alexander Vavilov received opportunity rejected owners of Universal's ostrich farms in British Columbia on Thursday – a chance to argue in Canada's highest court.
At the same time, the son of Russian spies established a legal threshold for the “reasonableness” of decision-making, which doom the birds of British Columbia six years later.
That threshold—and Vavilov's name—is printed all over the lower court decisions that the Supreme Court of Canada declined to review this week, justifying the Canadian Food Inspection Agency's (CFIA) decision to cull hundreds of ostriches. last December.
CBC's Caroline Bargout reports from Edgewood, British Columbia, after the Supreme Court rejected an appeal in a case involving a planned culling at the Universal Ostrich Farm.
“A consistent and unified approach to judicial review”
Although the highest court never gives grounds for dismissal of a case, The Federal Court of Appeal has made it clear In September, ostrich farm owners are unlikely to succeed in the Supreme Court of Canada with arguments that do not raise a “serious or controversial issue.”
Vavilov was born in Toronto in 1994. Russian spies posing as Canadians under false names, who would later be arrested in the US and charged with espionage. Their story formed the basis of a popular television series. Americans.
In 2014, the Canadian Registrar of Citizenship revoked Vavilov's citizenship – after concluding that the rule granting Canadian citizenship to persons born in Canada exempts from this right the children of diplomats and other representatives or employees of foreign governments.
He challenged the decision in Federal Court, setting off a fight with the Minister of Citizenship and Immigration Canada that lasted all the way to the Supreme Court of Canada.
At first glance, these facts may seem a far cry from the plight of more than 300 ostriches on a farm in Edgewood, British Columbia. face to face with destruction due to the threat of bird flu.
But at the heart of both cases is the question of the role of courts in reviewing discretionary policy decisions.
“The purpose of the Supreme Court is [Vavilov's case]was to develop a consistent and unified approach to judicial review that applies to a wide range of administrative decision makers,” Federal Court of Appeal Judge Gerald Heckman wrote last September.
“This includes CFIA decisions reviewed by the Court.”
“Legal, not public health experts”
The CFIA ordered the birds to be culled on Dec. 31, 2024—within 41 minutes of positive results for avian influenza from the carcasses of two of the approximately 25 to 30 ostriches that died over the previous three weeks at the Universal Ostrich Farm.
The owners of Universal Ostrich have applied for an exemption from the CFIA's so-called “eradication” policy, which aims to combat the spread of viruses that can harm animal health, human health and international trade in Canada by “rapidly eradicating infected populations.”
The agency rejected the exemption, which was based on the birds' supposedly “rare and valuable genetics” and the farm's claims that the affected ostriches were separated from the herd.
The owners of Universal Ostrich have asked the Federal Court for a judicial review of both the initial notice to dispose of the birds and the subsequent refusal to exempt them from culling.
From there the case went all the way to the Federal Court of Appeal and the Supreme Court of Canada.
The standard set by the Vavilov case asks whether the decision is “reasonable, transparent and understandable, and justified within the relevant factual and legal constraints.”
first decision of the Federal Court Ostrich cites this standard, emphasizing that judges “need to stay away from scientific debate and focus on whether decision makers used their expertise to make reasonable and procedurally fair decisions.”
“Judges are experts in law, not in public health, virology, epidemiology or veterinary medicine,” Judge Russell Zinn wrote in the first ruling against the farm owners.
“Reasonableness is whether the CFIA's explanation of its decisions tells a compelling story about how it made them…Procedural fairness is about the decision-making process itself, not the outcome.”
It's not the court's place to argue with science.
Debate over animal rights, mortality from the disease and claims that surviving ostriches could be the key to the fight against bird flu. attracted significant attention — but the disputes outside the court were different from those inside.
Zinn said it was not his job to decide “whose science on the virus in question is ‘better’.”
“Determining a winner in this contest would cause the court to commit two serious sins in the reasonableness test,” he wrote.
“First, it will encourage this Court to go beyond the legal bounds of testing the reasonableness of a broad policy decision. Second, it will effectively transform this Court into an academy of science and arbiter of truth in immunology, animal health, and public health.”
In this regard, Zinn cautioned against arguments that purport to support “common sense” decision-making.
“Common sense decision making only becomes truly 'common' and 'reasonable' when ordinary people are familiar with the type of decision being made or regularly encounter it,” he wrote.
“That is not the case in this case. The complex, science-based and important decisions involved in managing the spread of avian influenza extend far beyond common life experiences.”
“Judges do not have hearts of stone”
In the case of Vavilov. The Supreme Court of Canada ruled the decision to deprive him of citizenship is unfounded.
The court said the decision-maker in this situation failed to justify his interpretation of the law, which clearly did not apply to the children of foreigners who were not granted diplomatic immunity, even if they were spies.
The Supreme Court of Canada apparently saw nothing to suggest that the culling decision – or any of the decisions of the judges who later reviewed the CFIA decision – were unreasonable.
“Judges do not have hearts of stone. Like all people, we understand the emotional bonds that grow between people and the animals they care for,” Heckman wrote.
“Courts at both levels have found that the CFIA exercised its authority reasonably in the circumstances of this case and that its policies were lawful.”
