Commentary on developments in administrative law, particularly judicial review of administrative action by common law courts.
Section 1 of the Charter of Rights and Freedoms provides that any infringement of a Charter right must be “prescribed by law”, a requirement that must be satisfied by the government before an application of the proportionality test. The jurisprudence on section 1 is very messy and has been criticized. Indeed, the Supreme Court of […] Read more
Pierre c. Canada (Citoyenneté et Immigration), 2012 CF 1249 is one of the strangest cases I have ever seen. A series of bizarre factual errors motivated de Montigny J. to strike the decision down, because it was possible that the Refugee Protection Division had confused two different files.The RPD noted in its decision that the […] Read more
The Ospreys of the title are not the Welsh rugby franchise (often engaged in fierce competition with my home province of Munster), but rather the fish-eating birds of prey found near water. When unlawful government action threatens such creatures, they cannot go to court to defend themselves. Who can? The UK Supreme Court recently had […] Read more
The applicant in Francis v. Canada (Immigration and Citizenship), 2012 FC 1141 was concerned that she had not got a fair shake before the Refugee Protection Division, on the basis of comments made by the decision-maker in previous academic writings. He had suggested that the refugee protection system gave rise to anomalies, and cited the […] Read more
If honours were given for services to administrative law, Lord Black would be a strong candidate. His lawsuit against Prime Minister Jean Chrétien gave rise to an important decision on justiciability, Black v. Canada (Prime Minister), 54 OR (3d) 215. His more recent attempt to maintain his membership of the Order of Canada has prompted […] Read more
Rachel Barkow has an interesting new paper entitled Prosecutorial Administration. Her subject is institutional design. She argues that the prosecutorial imperatives of the U.S. Department of Justice have become pre-dominant, to the great detriment of three areas of regulation entrusted to the Department: corrections, clemency and forensics. Some of Barkow’s observations about administrative agencies with […] Read more
In its 2010 decision in Telezone, the Supreme Court of Canada took a relatively relaxed approach to private law actions against the federal government in provincial court. The difficulty is that in some of these cases a court will have to adjudicate on the lawfulness — as a public law matter — of actions or […] Read more
If you walk through the city centre streets of Montreal, you could well be walking along any street in North America, such is the predominance of big-name brands. This has long been a bone of contention for Quebeckers. Protest marches are not uncommon. Symbolically, the issue is of great importance, all the more so given […] Read more
A funny thing happened at the Tribunal Administratif du Québec recently. A hearing was conducted into the suspension of an individual’s driver’s licence by videoconference. One of the administrative judges was present at the hearing; the other joined from a remote location. When the SAAQ — the administrative agency that controls drivers’ licences — sought […] Read more
A helpful overview from this month’s issue of L’actualité. I note that the budget is around the $15m mark. So far, it seems like money well spent. Quite a contrast from the Irish corruption inquiries, where the Mahon Tribunal alone is projected to cost €300m! Read more