Canada; Baker v. Canada; Public Law; Administrative Law; Rule of Law; Procedural Fairness; Ethos of Justification; Duty to Give Reasons
This chapter argues that the remarkable phrase ‘alert, alive and sensitive’ – coined by Madame Justice L’Heureux-Dubé in the major Supreme Court of Canada decision, Baker v. Canada (Minister of Citizenship and Immigration) – signifies two important jurisprudential developments. First, the phrase ‘alert, alive and sensitive’ indicates a set of attributes connoting good judgment which can be used to evaluate the quality of judicial and administrative decisions. Second, the phrase comports with an emergent understanding of Canadian public law as an ‘ethos of justification’ in which citizens and non-citizens are democratically, and often constitutionally, entitled to participate in decisions made by government officials. Indeed, individuals are increasingly legally entitled to have access to and understand the reasons for these decisions as part of the content of the duty of fairness in administrative law. The chapter then analyzes the strong theoretical connections among the ethos of justification, crafting good judgments, and the duty to give reasons with the author arguing that the duty to give reasons rests on a normative foundation constituted by the values of dignity, rationality, and respect. This normative foundation structures the legal relationship between the individual and the state in Canadian public law. The author concludes that the ethos of justification could inform decision-making contexts outside of government.
Mary Liston, "‘Alert, Alive and Sensitive’: Baker, the Duty to Give Reasons, and the Ethos of Justification in Canadian Public Law" in David Dyzenhaus ed, The Unity Of Public Law (Hart Publishing 2004) 113.