Towards a theory of deference in Canadian proportionality jurisprudence


University of British Columbia

Date Issued


Document Type



Doctor of Philosophy - PhD




This thesis develops a theory of curial deference in proportionality analysis under section 1 of the Charter, one of the most undertheorized and doctrinally confused areas of Canadian constitutional law. By drawing, among other things, on insights from Robert Alexy’s theory of epistemic (knowledge-related) discretion, the work outlines the conceptual topology of deference, sketches out the ways in which deference ought to inform judicial review of the proportionality of legislatively chosen measures in achieving legislatively sought objectives, and offers a novel, rule-of-law-based theoretical justification for deference that departs in significant respects from existing justifications based on democratic legitimacy and institutional expertise. In particular, the theory of deference proposed herein carries to a higher level of abstraction the rule of law’s capacity to constrain the political nature of judicial function by fettering the excesses of epistemic discretion inherent in dispensing justice (as explored in the works of Joseph Raz and Judith Schklar, among others). In explaining why the rule-of-law rationale for curial restraint is normatively superior to traditional, competence-based rationales, this thesis re-situates the discussion on deference within the debate over the proper role of judiciary in reviewing the soundness of impugned policy measures. To this end, the work draws on the philosophical, normative, and institutional commitments of Hans Kelsen’s theory of constitutional review and upgrades Kelsen’s insights into the limits of judicial discretionary law-making with reference to modern formal notions of rule of law. Having justified deference on normative and epistemic grounds, this dissertation shows how the doctrine can be brought to bear on the analytical framework for section 1 proportionality reasoning. These proposals offer a course-correction away from currently flawed trends in deference jurisprudence and develop principled solutions to the epistemic difficulties in rights reasoning. Moreover, the suggested corrections incorporate awareness of institutional, doctrinal, and epistemic realities of adjudicating rights disputes under conditions of empirical and normative uncertainty.

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Attribution-NonCommercial-NoDerivatives 4.0 International




Law, Peter A. Allard School of