Foxes, Henhouses, and the Constitutional Guarantee of Judicial Review: Re-Evaluating Crevier

Abstract

Canadian legislatures cannot completely forbid judicial review of administrative action. This has been a matter of constitutional law since the Crevier decision. However, Crevier framed the constitutional guarantee of review around the much-maligned concept of jurisdictional error. In Vavilov, the Supreme Court held that jurisdictional errors were no longer relevant in conducting judicial review. This leaves the content of the constitutional guarantee obscure, a problem of considerable concern given recent cases on the matter.

This Article argues that the constitutional guarantee must be reframed and should be re-articulated to protect judicial review over all questions of law and correctness review on constitutional questions, specifically those relating to the division of powers. The core aim uniting these functions is the prevention of “foxes in henhouses”—unreviewable administrative legal authority. This revised constitutional guarantee is consistent both with the constitutional principles underlying Crevier and with the development of the modern law of judicial review, in which questions of law are reviewed on a presumptive deferential standard under an intensity of review framework. Though this revised constitutional guarantee is open to challenge, it is a better way of specifying the supervisory jurisdiction of superior courts considering the modern law of judicial review.

The paper tests out the new constitutional guarantee in light of two case studies: (1) the Federal Court of Appeal's Best Buy decision, which dealt with the scope of a right of appeal in light of a privative clause; and (2) the Alberta Sovereignty Act, which purports to establish a standard of patent unreasonableness for questions relating to the division of powers.

Keywords: administrative law