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You Say “Tomato”, I Say “Reasonableness”: Pham v Secretary of State for the Home Department [2015] UKSC 19
Shortly after a majority of the Supreme Court of Canada wrote that when fundamental rights are engaged by an administrative decision, “reasonableness requires proportionality” (here, at para. 38), the members of the UK Supreme Court said something very similar in Pham v. Secretary of State for the Home Department, [2015] UKSC 19. The case was […] Read more
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The Legal and Political Constitutions Collide: R. (Evans) v. Attorney General, [2015] UKSC 21
What sort of a King will Prince Charles be? A clue may lie in the contents of the so-called “black spider” letters he sends to government ministers, so named because they are typed up after Prince Charles writes them out in longhand and sent after he supplements them with additional cursive script. The Upper Tribunal […] Read more
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Cooperative Federalism Divides the Supreme Court of Canada: Quebec (Attorney General) v. Canada (Attorney General)
Paul Daly March 30, 2015 Constitutional law
Regular readers will know that I had quite a bit to say about the gun registry case decided by the Supreme Court of Canada on Friday: Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14. I have written a brief summary and commentary on the case at the I-CONnect blog. Here is a snippet: […] Read more
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Delegation, Drugs and Republicanism: Bederev v. Ireland, [2015] IECA 38
Paul Daly March 28, 2015 Constitutional law / Public law theory
Ireland now has a Court of Appeal. If some of its citizens were unaware of its existence, the buzz that followed Bederev v. Ireland, [2015] IECA 38 put paid to any lack of public awareness. In a set of reasons by Hogan J., the Court held that s. 2(2) of the Misuse of Drugs Act […] Read more
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Reasonableness, Proportionality and Religious Freedom: Loyola High School v. Quebec (Attorney General), 2015 SCC 12
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
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Administrative Appeals in Canada: Les appels administratifs au Canada
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
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Life Means Life, Except When it Doesn’t
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
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The Danger of Taking Things Literally: Corporation d’Urgences-santé c. Syndicat des employées et employés d’Urgences-santé (CSN), 2015 QCCA 315
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
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Didactic Administrative Law: Becoming a Canadian Citizen
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
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Administrative Independence and Decisional Autonomy: Some Thoughts from the Seventh Circuit
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