Constituting the Rule of Law: Fundamental Values in Administrative Law
(2002) 27 Queen’s Law Journal 445-509
65 Pages Posted: 17 Aug 2012 Last revised: 17 May 2013
Date Written: 2002
Recent administrative law decisions from the Supreme Court of Canada have renewed the idea that there are unwritten principles embedded in the Canadian constitutional landscape. The author argues that the reasoning in these judgments presupposes a particular vision of constitutionalism that is incompatible with the Court's previous jurisprudence. The Court traditionally supported a formal vision of the separation of powers which categorically reserved the interpretation of law to the judiciary, but it has recently taken a more democratic view of the separation of powers which recognizes the role of administrative tribunals in determining fundamental legal values.
The author discusses recent decisions of the Supreme Court of Canada which exemplify the formal and democratic visions of constitutionalism. In Cooper v. Canada (Human Rights Commission), the Court had to decide whether human rights tribunals could grant Charter remedies as a matter of constitutional principle. The majority, taking a formalistic view, concluded that the judiciary has exclusive constitutional authority to declare legislation invalid. The minority favoured the more democratic view that the tribunal’s power to decide questions of law necessarily includes the determination of constitutional issues unless the legislature has explicitly removed that power. This democratic vision of constitutionalism was elaborated in the majority opinion in Baker v. Canada (Minister of Citizenship and Immigration), where the Court replaced the traditional standard of judicial review with a more deferential approach to a tribunal’s reasons for decision.
The author proposes that the basis for the exercise of any authority should be the protection of fundamental values, rather than formalistic constitutional rules on institutional structure. In this sense, determining the content of our constitutional law calls for a reciprocal relationship between the legislature and the citizen. Indeed, the democratic vision of constitutional interpretive authority promotes not only the viability of the role of law in our society, but the future legitimacy of the Canadian administrative state.
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