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Respecting Deference as Respect: Rights, Reasonableness and Proportionality in Canadian Administrative Law

Mark Elliott and Hanna Wilberg (eds.), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford: Hart Publishing), Forthcoming

Queen's University Legal Research Paper No. 2015-002

23 Pages Posted: 11 Mar 2015 Last revised: 2 May 2015

Mark Walters

McGill University; McGill University Faculty of Law

Date Written: 2015

Abstract

The adoption of human rights instruments in common law jurisdictions has important implications for the judicial review of administrative decisions. When the exercise of an administrative discretion affects a right protected by a human rights instrument, courts in most jurisdictions adopt a form of reasonableness review that is more stringent and structured than traditional (or Wednesbury) reasonableness – usually one that adopts a ‘proportionality’ assessment. The author considers the way in which the law on this point has evolved in one common law jurisdiction – Canada. He argues that Canadian courts remain ambivalent about the use of proportionality in the administrative law context, an ambivalence rooted in an artificial distinction drawn between constitutional law and administrative law. The author argues that once this bifurcation is rejected, and a unity of public law acknowledged, proportionality may be seen as a general common law principle that, pursuant to the theory of ‘deference as respect’ developed by David Dyzenhaus, ought to be available in the judicial review of all important rights, interests or values, whether protected explicitly by written human rights instrument or not.

Keywords: Administrative Law, Proportionality, Human Rights, Constitutional Values, Judicial Revie

Suggested Citation

Walters, Mark, Respecting Deference as Respect: Rights, Reasonableness and Proportionality in Canadian Administrative Law (2015). Mark Elliott and Hanna Wilberg (eds.), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford: Hart Publishing), Forthcoming; Queen's University Legal Research Paper No. 2015-002. Available at SSRN: https://ssrn.com/abstract=2574810 or http://dx.doi.org/10.2139/ssrn.2574810

Mark Walters (Contact Author)

McGill University ( email )

Chancellor Day Hall
Faculty of Law, McGill University
Montreal, Quebec H3A 1W9
Canada

McGill University Faculty of Law ( email )

Montréal, Quebec
Canada
514-398-4742 (Phone)

HOME PAGE: http://F.R. Scott Professor of Public and Constitutional Law

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