1,720,962 research outputs found
Deference and reasonableness since Dunsmuir
Full text linkThe author addresses two perennial problems in Canadian administrative law: the choice of a standard of review and the inconsistent application of the reasonableness standard. With these problems in mind, the Supreme Court of Canada in Dunsmuir set out to establish a 'principled framework that is more coherent and workable\". The patent unreasonableness standard was eliminated, leaving the options of review as correctness and reasonableness, and the Court laid out some categories of issues that would properly be reviewed on each standard. Nevertheless, the author argues that the majority judgment failed to deliver a frameworkfor judicial review that addresses these two problems in a coherent manner. In four recent Supreme Court decisions-Alberta Teachers', Halifax, Dore and Nor-Manthe author detects a movement toward Binnie J's concurring suggestion in Dunsmuir that there should be a presumption of judicial deference, which would generally require judges to review administrative decisions on a standard of reasonableness rather than correctness. He goes on to illustrate that while this may be a promising development, it does not resolve the inconsistent application of the reasonableness standard. By contrasting the Court's decisions in Alberta Teachers' and Newfoundland Nurses' with those in Figliola and Mowat, the author demronstrates that the Court currently uses drastically different approaches to reasonableness review. Taking inspiration from the methodology used in Baker, which identified the variables that would determine the degree ofproceduralfairness owed in a specific case, the author suggests a more contextual approach to reasonableness review. This would, in his view, allow meaningful engagement with the particularities of each case while respecting the values of \"justification, transparency and intelligibility\" advanced in Dunsmuir
Roncarelli’s green card: The role of citizenship in Randian constitutionalism
Full text linkThis article investigates the distinct character of Randian constitutionalism and how it may have been inspired by American discourse on constitutional values. More specifically, the author examines how Justice Rand's brand of constitutionalism is distinguishable from the more dominant strain of Diceyan constitutionalism that was prominent among Canadian jurists during the twentieth century. The author argues that the difference between Randian and Diceyan constitutionalism can be explained largely by the central role that \"citizenship\" played in Justice Rand's understanding of the Canadian constitutional order. The author further argues that Justice Rand did not invent his conception of citizenship, but borrowed it from American constitutional jurisprudence regarding the Fourteenth Amendment to the Constitution of the United States. Accordingly, Justice Rand's opinion in Roncarelli and other cases shows how his constitutional vision was shaped by a series of strong dissenting opinions concerning the nowdefunct Privileges or Immunities Clause in the Fourteenth Amendment. By doing so, Justice Rand sought to install in Canadian public law the same fundamental principles of equality and non-discrimination that the American Congress intended to establish by adopting the Fourteenth Amendment
Rules, Principles, and the Reformation of Judicial Review
Full text linkThis article analyzes two different approaches to judicial review: the model of rules (whereby the legal validity of an administrative decision hinges on its formal attributes) and the practice of principle (whereby the legal legitimacy of an administrative decision hinges on whether it has been rendered fairly and justified reasonably in light of its legal context). The author argues that the shift toward the practice of principle facilitates the type of complex and contextual normative assessments that are required to promote the rule of law across a broad range of administrative decision-making. However, the author finds that the Supreme Court, in recent cases, has favoured developing and clarifying a new model of rules which has inadvertently created “grey holes” of legality, which exacerbate the risk of arbitrary dismissal in the realm of public employment and stultifies the culture of justification where administrative decisions are subject to a statutory right of appeal
Roncarelli’s Green Card: The Role of Citizenship in Randian Constitutionalism
No full textThis article investigates the distinct character of Randian constitutionalism and how it may have been inspired by American discourse on constitutional values. More specifically, the author examines how Justice Rand’s brand of constitutionalism is distinguishable from the more dominant strain of Diceyan constitutionalism that was prominent among Canadian jurists during the twentieth century. The author argues that the difference between Randian and Diceyan constitutionalism can be explained largely by the central role that “citizenship” played in Justice Rand’s understanding of the Canadian constitutional order.The author further argues that Justice Rand did not invent his conception of citizenship, but borrowed it from American constitutional jurisprudence regarding the Fourteenth Amendment to the Constitution of the United States. Accordingly, Justice Rand’s opinion in Roncarelli and other cases shows how his constitutional vision was shaped by a series of strong dissenting opinions concerning the now-defunct Privileges or Immunities Clause in the Fourteenth Amendment. By doing so, Justice Rand sought to install in Canadian public law the same fundamental principles of equality and non-discrimination that the American Congress intended to establish by adopting the Fourteenth Amendment.Cet article étudie le caractère distinct du constitutionnalisme randien et examine comment il a pu être inspiré du discours américain sur les valeurs constitutionnelles. Plus précisément, l’auteur examine les distinctions entre les approches constitutionnelles randienne et diceyenne, cette dernière étant proéminente parmi les juristes canadiens du vingtième siècle. L’auteur soutient que la différence entre les constitutionnalismes randien et diceyen s’explique en grande partie par l’importance qu’accordait le juge Rand à la citoyenneté dans sa conception de l’ordre constitutionnel canadien.L’auteur fait aussi valoir que le juge Rand n’a pas inventé sa vision de la citoyenneté, mais l’a plutôt empruntée à la jurisprudence constitutionnelle américaine traitant du Quatorzième amendement de la Constitution des États-Unis. Par conséquent, l’opinion du juge Rand dans Roncarelli et dans d’autres affaires montre comment sa vision constitutionnelle a été influencée par une série d’opinions dissidentes relatives à l’ancienne clause « privilèges ou immunités » du Quatorzième amendement. Le juge Rand cherchait ainsi à incorporer au droit public canadien les mêmes principes fondamentaux d’égalité et de non-discrimination que le Congrès américain avait voulu établir en adoptant le Quatorzième amendement
Administrative Constitutionalism and the Unity of Public Law
Full text linkPublic law scholarship in the common law tradition often aims at elucidating a connection between law and constitutional values like equality, due process, and the rule of law. However, in their quest to reveal the morality of public law, common lawyers often focus their attention on judicial interpretations of constitutional values to the exclusion of other sources of constitutional jurisprudence. The author argues that the traditional fascination with courts as the primary or exclusive arbiters of constitutional values should be tempered and supplemented by recognizing the valuable contributions of administrative officials who interpret and enforce constitutional norms when exercising statutorily delegated legal authority. By drawing attention to the contributions of the Canadian Human Rights Commission and Tribunal in advancing equality rights, the author argues that recent decisions from the Supreme Court of Canada which recommend judicial deference to reasonable, proportionate, and contextually sensitive administrative decisions concerning human rights, instead of resorting reflexively to correctness review, will serve to strengthen the moral unity of Canadian public law
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Full text link“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
“The Maverick Constitution” — A Review of Canadian Maverick: The Life and Times of Ivan C. Rand, William Kaplan
Full text link(Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 2009
Administrative Law and Curial Deference
Full text linkThis thesis examines three interrelated issues. The first concerns a question about the status of administrative law, namely whether administrative officials have authority to determine what the law requires under a democratic constitution. Historically, this question has not been adequately addressed in public law scholarship because neither Diceyan constitutional theory nor common law doctrine has been traditionally receptive to administrative law. In this thesis, I argue that there are good reasons for people to respect the legal authority of administrative officials and their decisions. Those reasons are rooted in respect for the democratic process by which administrative officials are empowered, and respect for the various forms of expertise that administrative officials possess.
The second issue concerns the doctrinal aspect of administrative law. If there are good reasons for believing that administrative officials have legitimate legal authority, then those same reasons suggest that judges should respect administrative legal decisions. In order to better understand how the relevant reasons for respecting administrative decisions alter the practice of judicial review, I compare and contrast the traditional doctrine of jurisdictional review with the doctrine of curial deference. This comparison shows that the doctrine of curial deference provides a superior account of the legitimate legal authority of administrative officials, and that this account makes a practical difference for the practice of judicial review.
The third issue concerns whether the doctrine of curial deference can be reconciled with the rule of law. Assuming that there are good reasons for respecting administrative decisions, how can judges both respect an administrative decision while ensuring that it is consistent with the rule of law? I argue that judges can both respect administrative decisions and maintain the rule of law by requiring administrative officials to justify their decisions adequately in light of public reasons which are both patent and latent in existing legal materials.SJ
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