In Search of Coherence: The Charter and Administrative Law Under the McLachlin Court

The McLachlin Court’s First Ten Years: Reflections of the Past and Projections of the Future, A. Dodek and D. Wright, eds., Toronto Lexis Nexis, Susan Gratton, 2010

26 Pages Posted: 20 Aug 2011

See all articles by Lorne Sossin

Lorne Sossin

York University - Osgoode Hall Law School

Date Written: 2010

Abstract

With her appointment as Chief Justice, Madame Justice McLachlin inherited one of the most exasperating analytical tangles in modern public law. When an alleged Charter violation occurs as a result of an administrative decision, should the judicial review analysis proceed on Charter principles or administrative law principles? Both analytical avenues engage rich bodies of jurisprudence designed to check government action where it impairs individual interests. Both number among the Supreme Court’s most celebrated doctrinal innovations of the last three decades. And both have strong purchase for legal experts of each field examining public law problems through the lens of their respective traditions. However, these two analytical avenues sit uncomfortably alongside one another. Whenever administrative decision-making is involved in the alleged breach of Charter rights, the court must make a preliminary choice as to the analysis to be pursued and this choice, in turn, determines the range of public law remedies available.

This uneasy relationship between administrative law and the Charter has surfaced more frequently in recent years as Charter jurisprudence has matured and possible Charter violations are weeded out of proposed legislation and regulations before they are ever enacted. Charter violations are more likely to arise as a result of discretionary administrative action rather than appearing explicitly in the wording of a legislative or regulatory enactment.

Our analysis is divided into two parts. The first part tracks the Supreme Court’s approach to the relationship between administrative law and the Charter prior to the McLachlin Court, while the second part examines the approach of the McLachlin Court. We conclude that the Court has yet to develop a workable and coherent approach to the relationship between the Charter and administrative law. The seeds of a possible solution have been sown with the Vancouver Transit decision but we suggest that, although this new approach has won short-term acceptance among the members of the McLachlin Court, it is unlikely to succeed in reconciling public law analysis and values over the long term.

Keywords: Justice McLachlin, judicial review analysis, administrative decision making, Charter breaches, administrative law and charter, McLachlin court

JEL Classification: K23

Suggested Citation

Sossin, Lorne, In Search of Coherence: The Charter and Administrative Law Under the McLachlin Court (2010). The McLachlin Court’s First Ten Years: Reflections of the Past and Projections of the Future, A. Dodek and D. Wright, eds., Toronto Lexis Nexis, Susan Gratton, 2010. Available at SSRN: https://ssrn.com/abstract=1911524 or http://dx.doi.org/10.2139/ssrn.1911524

Lorne Sossin (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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