Unholy Trinity: The Failure of Administrative Constitutionalism in Canada
(2020) 2 Journal of Commonwealth Law 1
54 Pages Posted: 30 Sep 2020
Date Written: August 15, 2020
The jurisprudence of the Supreme Court of Canada that follows Doré v Barreau du Québec involves administrative decision-makers as key actors in the implementation of the Canadian Charter of Rights and Freedoms. The Supreme Court emphasizes their expertise in implementing constitutional rights and “Charter values” in the context of the regulatory regimes they are charged with enforcing, and holds that this expertise entitles administrative tribunals to deference when they make decisions that affect the rights the Charter protects or the values that underpin these rights. This article argues that the Supreme Court is wrong to endorse this deferential approach, sometimes described as “administrative constitutionalism”.
It does so by examining the Supreme Court’s decisions in the companion cases that upheld the denial of accreditation by the law societies of British Columbia and Ontario to a proposed fundamentalist Christian law school (the Trinity Western Cases). After reviewing both academic defenses of “administrative constitutionalism” and Supreme Court’s previous engagement with it, the article shows that the Trinity Western Cases illustrate the failure of “administrative constitutionalism” to live up to the main arguments made by its supporters. This failure is not accidental, but consistent with significant trends in Canadian administrative law. The article then goes on to consider the implications of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov for the future of “administrative constitutionalism” in Canada, arguing that Vavilov undermines the theoretical foundations of “administrative constitutionalism” or, at a minimum, will change the way it is implemented. The article concludes with an argument that, in addition to not delivering on the promises made on its behalf, “administrative constitutionalism” is also contrary to the Rule of Law. “Administrative constitutionalism” is second-rate constitutionalism in practice, and wrong in principle. The sooner it is recognized for the misguided idea that it is and abandoned, the stronger our actual constitution and the rights it protects will be.
Keywords: Administrative Constitutionalism, Judicial Deference, Rule of Law, Charter Values, Standard of Review, Correctness, Reasonableness, Administrative Expertise, Doré, Trinity Western, Loyola, Dunsmuir, Vavilov
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