Deference as Respect? The Supreme Court of Canada, Academic Sources and the Standard of Judicial Review

2016 ◽  
Author(s):  
Nachshon Goltz ◽  
Sebastian Beck-Watt
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Supreme Court Of Canada ◽  
The Supreme Court

Repeat Litigators and Agenda Setting on the Supreme Court of Canada

2002 ◽  
Vol 35 (4) ◽  
pp. 811-833 ◽  
Author(s):  
Roy B. Flemming ◽  
Glen S. Krutz
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Statistical Models ◽  
Comparative Research ◽  
The United States ◽  
Supreme Court Of Canada ◽  
High Courts ◽  
The Supreme Court ◽  
Selection Of

The expanding public policy role of high courts heightens concerns over whether societal and political inequalities affect the outcomes of litigation. However, comparative research on this question is limited. This article assesses whether status inequalities between parties and differences in the experience and resources of attorneys influence the selection of cases for judicial review in the Supreme Court of Canada. A series of statistical models reveal that governments are more likely than other parties to influence whether leave is granted but that the experience and resources of lawyers, unlike in the United States, have little impact. The decentralized, low volume and high access features of the Canadian process may explain this finding.

scholarly journals Dunsmuir’s Flaws Exposed: Recent Decisions on Standard of Review

2013 ◽  
Vol 58 (2) ◽  
pp. 483-507
Author(s):  
Paul Daly
Keyword(s):  
Functional Analysis ◽  
New Brunswick ◽  
Supreme Court ◽  
Judicial Review ◽  
External Factors ◽  
Supreme Court Of Canada ◽  
Categorical Approach ◽  
The Supreme Court ◽  
Different Types ◽  
Single Standard

In Dunsmuir v. New Brunswick, the Supreme Court of Canada attempted to clarify and simplify Canadian judicial review doctrine. I argue that the Court got it badly wrong, as evidenced by four of its recent decisions. The cases demonstrate that the new categorical approach is unworkable. A reviewing court cannot apply the categorical approach without reference to something like the much-maligned “pragmatic and functional” analysis factors. The categories regularly come into conflict, in that decisions could perfectly reasonably be assigned to more than one category. When conflict occurs, it must be resolved by reference to some factors external to the categorical approach. The new, single standard of reasonableness is similarly unworkable without reference to external factors. Different types of decision attract different degrees of deference, on the basis of factors that are external to the elegant elucidation of reasonableness offered in Dunsmuir. Clarification and simplicity have thus not been achieved.

The Courts

2007 ◽  
Vol 40 (1) ◽  
pp. 249-250
Author(s):  
Ran Hirschl
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Judicial Review ◽  
Political Institutions ◽  
Supreme Court Of Canada ◽  
Court System ◽  
University Of British Columbia ◽  
The Supreme Court

The Courts, Ian Greene, The Canadian Democratic Audit Series; Vancouver: University of British Columbia Press, 2006, pp. xvii, 182.This book is another welcome addition to the Canadian Democratic Audit Series. It sets out to assess the democratic credentials of Canada's judiciary—a most significant branch of government in post-1982 Canada. The book's approach is refreshing in several respects. Instead of the traditional focus on the well-rehearsed debate over the questionable democratic credentials of judicial review, the book attempts to evaluate the adequacy of the Canadian court system in relation to three basic tenets of democracy: participation, inclusiveness, and responsiveness. Unlike most accounts of Canadian political institutions, it pays due attention to elements of the court system beyond the Supreme Court of Canada. In so doing, Greene is able to assess more accurately whether the Canadian judiciary as a whole is living up to that set of reasonable democratic expectations.

scholarly journals What has Dunsmuir Taught?

2010 ◽  
pp. 1017
Author(s):  
Alice Woolley ◽  
Shaun Fluker
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Review Process ◽  
Functional Test ◽  
Supreme Court Of Canada ◽  
Review Analysis ◽  
The Supreme Court ◽  
Majority Judgment ◽  
Administrative Tribunal

In Dunsmuir the Supreme Court of Canada reassessed the “troubling question” of how courts should review decisions of administrative tribunals. The majority judgment of Bastarache and LeBel JJ. (writing also for McLachlin, Abella, and Fish JJ.), sought to simplify the judicial review process by reducing the standards of review from three to two, increasing reliance on precedent to determine which standard is appropriate, making explicit the significance of the nature of the question to the determination of the standard in every case, and re-labelling the “pragmatic and functional” test the “standard of review analysis.” In its recent judgment in Khosa the Supreme Court emphasized the simplifying intention of Dunsmuir, suggesting that “Dunsmuir teaches that judicial review should be less concerned with the formulation of different standards of review and more focused on substance, particularly on the nature of the issue that was before the administrative tribunal under review.”

Canada: From Privy Council to Supreme Court

2021 ◽  
pp. 183-228
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Direct Result ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
Canadian History ◽  
British North America ◽  
Court Of Appeals ◽  
The Supreme Court

This chapter assesses the emergence of judicial review in Canada. Canadian judicial review emerged as a direct result of federalism and separation of powers umpiring by the Judicial Committee of the Privy Council (JCPC), which was Canada’s highest court from the adoption of the British North America Act in 1867 until Canada ended appeals to the JCPC in 1949. There was also, as Ran Hirschl would argue, an element of elite hegemonic entrenchment by imperial British colonial elites in the retention of the JCPC as the highest court of appeals in Canada from the creation of the Supreme Court of Canada in 1875 until Canada abolished appeals to the JCPC in 1949. Some Canadian elites tried and failed to end JCPC judicial review in Canadian cases in 1875. Canadian judicial review from 1867 to 1982 was exclusively concerned with federalism and separation of powers judicial umpiring because Canada had no constitutional Bill of Rights until 1982. There are thus two founding moments in the judicial review of legislation in Canadian history: firstly, the period from 1867 to 1982 when Canadian federalism and separation of powers law took shape as a result of federalism and separation of powers umpiring; and, secondly, the period from 1982 to the present, when the Supreme Court of Canada began vigorously enforcing the Canadian Charter of Rights and Freedoms. The emergence of judicial review from 1982 down to the present day is partly a rights from wrongs phenomenon, and it is partly the result of constitutional borrowing from the United States’s Warren Court.

Reconciling Rights and Federalism during Review of the Charter of Rights and Freedoms: The Supreme Court of Canada and the Centralization Thesis, 1982 to 1999

2001 ◽  
Vol 34 (2) ◽  
pp. 321-355 ◽  
Author(s):  
James B. Kelly
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
Administration Of Justice ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Relationship ◽  
Provincial Autonomy

This article considers the relationship between rights and federalism in the Supreme Court of Canada's review of cases invoking the Canadian Charter of Rights and Freedoms. It considers whether the Supreme Court of Canada has compromised provincial autonomy by establishing Canada-wide standards in provincial areas of jurisdiction. It suggests that the centralization thesis associated with judicial review on Charter grounds is inconclusive, and combining several processes under the rubric of centralization, it misrepresents the Charter's effect on Canadian federalism and provincial autonomy. Further, the centralization thesis has lost much momentum during the course of Charter review, and, as a result, is a limited approach to understanding the relationship between rights and federalism in Canada. Specifically, the Supreme Court of Canada has demonstrated sensitivity to federalism in its Charter jurisprudence, most evident in a complex jurisprudence that has served to offset the centralization thesis and its implications for provincial autonomy. This threepart federalism jurisprudence is federalism as gatekeeper, an explicit federalism jurisprudence and an implicit federalism jurisprudence, which is most evident in the relationship between criminal rights and provincial responsibility for the administration of justice. This article demonstrates that the Court's approach to Charter review has seen a reconciliation between rights and federalism, most evident in the declining importance of the centralization thesis and the growing importance of the three-part federalism jurisprudence during Charter review. This sensitivity to federalism has existed since the beginning of the Court's Charter jurisprudence but has largely been overshadowed by the dominance of the centralization thesis in the Charter debate.

scholarly journals Judicial Review, Judicial Revisionism and Judicial Responsibility

2019 ◽  
Vol 17 (1-2) ◽  
pp. 169-216
Author(s):  
Brian A. Langille
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Early Years ◽  
Supreme Court Of Canada ◽  
New Era ◽  
Second Best ◽  
Labour Relations ◽  
The Supreme Court ◽  
History Of ◽  
The Law

Judicial review of the decisions of labour relations boards has been a nagging problem for the Supreme Court of Canada for decades. The decision of the Court in Le Syndicat des Employés de Production du Québec et de L’Acadie v. Canada Labour Relations Board et al. provides an opportunity for and indeed provokes review of the work of the Court in dealing with this recurring problem. This essay begins by placing in perspective the concrete issue posed in the L’Acadie decision. But the particular facts of that case are used only as a vehicle to explore the nature of the problem of judicial review of labour decisionmakers and the history of the Court's handling of it. A fundamental thesis of this essay is that the Court's work can be best understood as comprising two distinct periods, the early years (pre-1979) and the new era (1979-1984?). This essay articulates the view that during the early years the Court developed a law of judicial review which was wholly inadequate both in functional and doctrinal terms. In the new era the Court simplified and reformed the law of judicial review of labour boards and labour arbitrators. It is only from the perspective of the Court's previous handling of the issue that the decision in L’Acadie can be truly understood. When so viewed the decision is perfectly inadequate. The case creates a new distinction based upon the old confusion of “jurisdiction”. This essay then develops the view that no theory of judicial review which revolves around the notion of “jurisdiction” can ever satisfactorily deal with the issues presented. In this respect the Court's own cases from the “new era” represent a much more sensible, if still a second best approach. Finally, suggestions for a legislative solution to the problem posed by L’Acadie are briefly explored.

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