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Charter Right or Charter Lite? Administrative Discretion and the Charter

Supreme Court Law Review, Vol 67, 2014

30 Pages Posted: 15 Oct 2014  

Audrey Macklin

University of Toronto - Faculty of Law

Date Written: October 9, 2014

Abstract

The Supreme Court of Canada has vacillated in its guidance about the incorporation of the Charter into the exercise of discretion. The author contends that Doré’s attempt to synchronize proportionality analysis (derived from constitutional adjudication) with deferential reasonableness review (derived from administrative law) is unsatisfactory. The replacement of Charter ‘right’ or ‘freedom’ with Charter ‘value’ obscures the recognition of rights and freedoms in play. The administrative law proportionality analysis that the Court endorses in Doré does not respect the primacy or priority of Charter rights, and curial deference toward the outcomes it produces exacerbate the dilution of rights protection. The author warns of the negative incentives this creates for governance and the rule of law. She proposes a set of alternative factors and considerations that ought to animate the exercise of discretion, and judicial review of discretion, where Charter rights or freedoms are at stake.

Keywords: Canadian Charter of Rights and Freedoms, administrative law, discretion, deference, standard of review

Suggested Citation

Macklin, Audrey, Charter Right or Charter Lite? Administrative Discretion and the Charter (October 9, 2014). Supreme Court Law Review, Vol 67, 2014. Available at SSRN: https://ssrn.com/abstract=2507801

Audrey Macklin (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-946-7493 (Phone)
416-978-7899 (Fax)

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