By David Dyzenhaus
This publication tackles the $64000 subject of the connection among 3 components of the general public legislation regime in a standard legislations jurisdiction: the typical legislations of judicial evaluate or the unwritten structure, the written structure and public overseas legislation. Thematic coherence is ensured through the truth that the papers have been awarded at a convention in early 2003 after which widely revised, and through a normal concentrate on a path-breaking determination of Canada's best court docket (Baker). The e-book therefore encompasses a hugely effective trade among a world team of students on such topics because the rule of legislations, judicial deference, the separation of powers, the position of human rights in universal legislation reasoning on immigration and defense issues, and the character of felony authority.
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4 (1999) 7 Reid’s Administrative Law 163 at 163. 5 C Gillis, ‘Mother in battle over deportation legally a resident’, National Post, 22 December 2001. 22 David Mullan The starting point for this chapter is Baker’s impact on the standard of review that the courts apply in reviewing exercises of public power; the degree of deference, if any they pay to the judgment of the designated decision-maker. One of the keenest debates about the impact of Baker has focused on whether the principles for review of discretionary decisionmaking set out in the majority judgment of L’Heureux-Dubé J presaged an era of greater, the same, or less deference in the conduct of judicial review.
This discussion then raised the question whether such a duty would not chill executive ratification. 18 David Dyzenhaus Court of Canada’s jurisprudence on deference and indeed takes that jurisprudence a step forward in her recognition that courts should consider deferring to executive determinations of the content of fairness. And since Cartier thinks that the nurturing relationship between Charter and administrative law is two-way, one might infer that she would think that courts should be open to the possibility that different degrees of intensity of judicial review should be available even when the issue is the impact of an administrative decision on a Charter-protected value.
2 Deference from Baker to Suresh and Beyond—Interpreting the Conflicting Signals 1 2 DAVID MULLAN 3 There should really be no doubt in any reader’s mind that the application of the functional and pragmatic approach to the discretionary decisions at stake in Baker marks not an extension of deference but a retreat from it. 5 In the course of her struggles to this end, Mavis Baker had a massive collateral impact. The judgment on her appeal to the Supreme Court of Canada involved a consideration and re-evaluation of several concerns that are central to the ways in which statutory and prerogative authorities take decisions and particularly exercise discretionary powers.