Rethinking the Process/Substance Distinction: Baker V. Canada

David Dyzenhaus, Evan Fox-Decent RETHINKING THE PROCESS/SUBSTANCE DISTINCTION BAKER V. CANADA, The University of Toronto Law Journal, Vol. 51, No. 3, pp. 193-242, 2001

51 Pages Posted: 5 Feb 2008 Last revised: 22 Nov 2015

David Dyzenhaus

University of Toronto - Faculty of Law/Department of Philosophy

Evan Fox-Decent

McGill University - Faculty of Law

Abstract

The authors argue that in Baker v. Canada, the Supreme Court of Canada set out a unified theory of judicial review which seeks to rest review on substantive ideals related to fundamental values such as human rights and the best interests of children. The Court's reliance on substantive criteria to guide review places stress on the traditional process/substance distinction under which reviewing courts would generally review procedural matters with some intensity, but would resist reviewing the substance or merits of a decision with the same intensity. The authors argue that the newfound stress on the process/substance distinction is welcome, and to some extent can be mitigated, because the reasons underlying review of procedure equally justify review of cases in which human rights and other fundamental values are at stake.

Keywords: judicial review, process, substance, human rights, fundamental values, best interests of children, convention on the rights of the child, immigration, rule of law, principle of legality

Suggested Citation

Dyzenhaus, David and Fox-Decent, Evan, Rethinking the Process/Substance Distinction: Baker V. Canada. David Dyzenhaus, Evan Fox-Decent RETHINKING THE PROCESS/SUBSTANCE DISTINCTION BAKER V. CANADA, The University of Toronto Law Journal, Vol. 51, No. 3, pp. 193-242, 2001 . Available at SSRN: https://ssrn.com/abstract=1090260

David Dyzenhaus

University of Toronto - Faculty of Law/Department of Philosophy ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-978-6935 (Phone)
416-978-2648 (Fax)

Evan Fox-Decent (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

HOME PAGE: http://https://www.mcgill.ca/law/about/profs/fox-decent-evan

Paper statistics

Downloads
360
Rank
66,512
Abstract Views
1,604