(DOWNLOAD) "Standing at the Divide: The Relationship Between Administrative Law and the Charter Post-Multani. (Canada)" by McGill Law Journal # eBook PDF Kindle ePub Free
eBook details
- Title: Standing at the Divide: The Relationship Between Administrative Law and the Charter Post-Multani. (Canada)
- Author : McGill Law Journal
- Release Date : January 22, 2008
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 371 KB
Description
The polarized opinions of the majority and minority in the Supreme Court of Canada's decision, Multani v. Commission scolaire Marguerite-Bourgeoys, set out competing philosophies of the relationship between administrative law and the law of the Canadian Charter of Rights and Freedoms. The majority distinguishes between judicial review under the Charter and judicial review in administrative law on the basis of the purpose intended to be achieved by the review in any given case. In contrast, the minority adopts a categorical distinction between Charter review and administrative review based on whether the government activity at issue involves law or administrative discretion. The author argues that the purposive approach of the majority has the potential to rationalize the Supreme Court of Canada's Charter and administrative law jurisprudence, thereby laying the foundation for a conceptually coherent theory of public law in the post-Charter era. In contrast, the minority's categorical approach is ultimately unworkable given the difficulty of distinguishing between law and discretion in the modern administrative state. As an illustration, the author examines a particular jurisprudential trouble spot at the intersection of administrative and Charter law: the "prescribed by law" condition in section 1 of the Charter. The prescribed by law jurisprudence serves as a cautionary tale relating the conceptual flaws of a categorical approach to law and discretion. The categorical approach to administrative law and the Charter preferred by the minority in Multani would only perpetuate this ill-conceived distinction between law and discretion and allow it to infiltrate the Supreme Court of Canada's Charter jurisprudence more widely.