The Deep Structure of Roncarelli V. Duplessis
University of New Brunswick Law Journal, Vol. 53, p. 111, 2004
23 Pages Posted: 22 Aug 2008
Date Written: August, 21 2008
Justice Rand's judgment in Roncarelli v Duplessis is rightly reputed to be one of the classic judgments in Canadian public law.
Roncarelli is a judgment about administrative law, about judicial review of abuse of administrative discretion. And administrative law - the common law of judicial review - is usually regarded as the lesser part of public law. In contrast, constitutional law, by which is meant the study of the written constitutional texts of a legal order, is considered to be the serious component of public law. This prejudice is deeply positivistic in that it considers that Parliament is subject to constitutional law only when there is a written text which sets out legal controls. Moreover, this text must be entrenched so that judges have the final say over whether statutes offend the constitution unless the constitution is itself changed by a process of amendment beyond the reach of ordinary legislation. At most, constitutional rights are the rights that can be implied into such text, hence the label of "implied bill of rights" for Justice Rand's constitutional judgments, many of which relied on his understanding of the Constitution Act, 1867, and can thus be understood as premised on a constitutional text, even though he found more in the text than had been explicitly stated by its drafters. The common law of judicial review is then not akin to constitutional law, because an omnipotent or supreme legislature - one not subject to a written constitution - can always use legislation as a blunt instrument to override even the boldest common law judge.
It is this prejudice that I explore. I argue that judicial review in public law is best understood as based on fundamental constitutional values on a continuum, ranging from the ordinary situations of common law judicial review to the most striking judicial interventions on the basis of an entrenched bill of rights. Just this continuum is revealed by Rand J.'s public law judgments. To see that there is a continuum we must start where it starts--in administrative law - precisely because in administrative law judges have to rely on the idea of the unwritten constitution.
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