‘Chartering’ in the Shadow of Lochner: Guindon, Goodwin and the Criminal-Administrative Distinction at the Supreme Court of Canada
Supreme Court Law Review (2d), Vol. 76, pp. 307-328 (2016)
22 Pages Posted: 4 Feb 2017
Date Written: February 2, 2017
As a principle of statutory and constitutional interpretation, the state is presumptively entitled to more favourable procedures for establishing administrative wrongdoing than criminal offending. Though this distinction has long been criticized as inflexible and unjust, the Court’s decisions in Guindon v Canada and Goodwin v. British Columbia (Superintendent of Motor Vehicles) further entrenched it. The author argues that the distinction stems from an anachronistic fear that providing adjudicative fairness protections in administrative proceedings would frustrate governments’ ability to regulate economic activity in the public interest. This fear originated in the reaction to the infamous Lochner era when U.S. courts often blocked state efforts to enact and enforce progressive economic legislation. But as legislatures have increasingly relied on administrative and civil enforcement regimes to address forms of wrongdoing previously left to the criminal law, the fear of Lochner has caused undue harm to individual liberty. The author consequently proposes replacing the Court’s rigid and formalistic interpretation of “charged with an offence” in s. 11 of the Charter with one that is more flexible, functional, and purposive and places a greater burden on government to justify elisions of adjudicative fairness norms.
Keywords: Criminal Law, Constitutional Law, Canadian Law, Canada, Charter of Rights, Charged with an Offence, Section 11
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