Where an administrative decision-maker has violated a fundamental right, how should courts review the decision? Should they apply the standards of constitutional law (a proportionality test, for example)? Or should they apply the standard grounds of administrative law (such as reasonableness)? The Supreme Court of Canada has written more than most on this question and […] Read more

Regular readers know of my fascination with the “internal standard of review” problem: how does an appellate body within the administration go about reviewing first-instance decisions? The issue will shortly be before the Federal Court of Appeal, in the context of refugee appeals. I have a paper (in French) on the subject which will appear […] Read more

A couple of weeks ago, the federal government announced new ‘life without parole’ legislation. I was quoted in a story suggesting the proposed law would be “likely to face a Charter challenge”: “This is not parole,” Harper said. “Unlike parole, decisions will not rest with an appointed board but with the federal cabinet, men and […] Read more

As I have previously explained, I think it is wrong to measure administrative interpretations of law by reference to the principles of statutory interpretation. Sure, administrative decision-makers should be required to read statutory provisions intelligently and explain their conclusions in terms of statutory language and objectives, but they should not be required to master these […] Read more

I took the Canadian citizenship test recently. This is great fun for an administrative lawyer. For example, when the regulations say that citizenship is dependent in part on responding accurately to questions “prepared by the minister”, I am not fooled into thinking that Mr. Alexander composed the test himself on a sunny Sunday afternoon at […] Read more

At issue in Association of Administrative Law Judges v. Colvin, was a directive issued by the chief administrative law judge of the Social Security Administration, setting out the following “goal” for administrative law judges: each one was to “manage their docket in such a way that they will be able to issue 500–700 legally sufficient […] Read more

Just a brief comment on the recent Supreme Court of the United States decision in Yates v. United States. While on a routine patrol, officials boarded a commercial fishing vessel captained by Yates to check that he and his crew were obeying federal fishing laws. Fully prepared for this important task, the officials took out […] Read more

Ishaq v. Minister of CItizenship and Immigration, 2015 FC 156 has received enormous media attention. The case touches on whether the government can require an applicant for Canadian citizenship to take off her niqab before she takes the oath of allegiance. Moreover, having lost at first instance, the federal government was very loud in announcing […] Read more

Can a court require the Prime Minister to appoint senators? Having been embarrassed (apparently through no fault of his own) by scandals involving his past picks, Mr. Harper is in no hurry to name any new senators to replace retirees. And the leader of the opposition, Mr. Mulcair, has vowed not to appoint any senators […] Read more

“A question of general law which will require the application of a correctness standard, aside from the constitutional questions and others mentioned in Dunsmuir, are becoming increasingly few and far between, if any still exist” — Loewen v. Manitoba Teachers’ Society, 2015 MBCA 13, at para. 54. And yet, and yet, and yet…in Wilson v. […] Read more