Faculty Author Type

Current Faculty [Mary Liston]

Document Type

Book Chapter

Publication Date

2013

Subjects

Rule of law; administrative law; arbitrariness; fairness; standard of review; reasons; reasonableness; judicial review; Charter; Charter values; deference; Doré; proportionality

Abstract

This chapter discusses several of the key attributes of the rule of law and explores their relevance for Canadian administrative law: the rule of law as an unwritten constitutional principle; the rule of law as a political ideal which structures institutional relations and competencies; and, the rule of law as a distinctive political morality which, in Canada, is understood as a dialogue among the three branches of government. The chapter assesses the Canadian articulation of the rule of law in the jurisprudence of the Supreme Court of Canada, then turns to the contemporary judicial review of administrative action. Recent case law illustrates how the rule of law informs how judges engage with statutes through the modern approach to interpretation, motivates deference to other branches of government, and facilitates the creation of common law constraints on the exercise of discretion. This substantially revised chapter takes into account several important jurisprudential developments that have occurred since the first edition: recent pronouncements on the concepts of fairness and arbitrariness in administrative law; the new focus on the adequacy of reasons within the reasonableness standard of review; the marginalization of the correctness standard in favour of the reasonableness standard; and, the new approach to the judicial review of discretionary decisions implicating Charter values announced in Doré v Barreau du Québec, 2012 SCC 12.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.