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Judicial Review Introduction to Canadian Public Law - Section C November 23, 2006

Judicial Review Introduction to Canadian Public Law - Section C November 23, 2006. Professor Bruce Ryder. foundations of constitutional judicial review. in U.S., text of constitution silent regarding its status and enforcement gap filled by Marbury v. Madison 1803 USSC

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Judicial Review Introduction to Canadian Public Law - Section C November 23, 2006

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  1. Judicial ReviewIntroduction to Canadian Public Law - Section CNovember 23, 2006 Professor Bruce Ryder

  2. foundations of constitutional judicial review • in U.S., text of constitution silent regarding its status and enforcement • gap filled by Marbury v. Madison 1803 USSC • what is the source of constitutional supremacy and judicial review in Canada?

  3. limits on judicial revew: justiciability • when are claims non-justiciable? (not amenable to judicial resolution) • Operation Dismantle 1985 SCC (457) • are Cabinet decisions subject to the Charter? • why did the Court strike out the statement of claim in this case? • is there a “political questions” doctrine in Canadian law?

  4. types of constitutional challenges to legislation or executive action • unwritten principles: Secession Ref (95, 112, 124), Prov. Judges Ref (338, 365, 493), Imperial Tobacco (98), Babcock (120), Hogan (141), Ocean Port (242), Bell Canada (498) • division of powers: Part V, ss.91-95 of the CA, 1867; pp.123-6; Qu’Appelle (505) • rights -language rights: e.g. s.133 CA, 1867; Manitoba Ref (477) -Aboriginal and treaty rights: s.35 CA, 1982; pp.47-53; Delgamuukw (50) -denominational school rights: e.g. s.93 CA, 1867 -Charter of Rights and Freedoms: e.g., Figueroa (165), Taylor (510), Halpern (81)

  5. unwritten principles • Bell Canada 2003 SCC (498) • on what basis did Bell challenge the independence of the CHRT? • does the unwritten principle of judicial independence apply to all adjudicative tribunals? should it? • what other legal rules require that the CHRT have a high degree of independence and impartiality? • why was there no reasonable apprehension of bias in this case?

  6. federalism/division of powers • can be used to challenge the validity, application or operation of legislation, in whole or in part • can also be used to determine the jurisdiction of administrative tribunals: see Qu’Appelle 1988 FCTD (505)

  7. Charter of Rights and Freedoms • application: s.32 • violation: ss.2-23 • limits: s.1, s.33 • remedies: ss.24 and 52 • Taylor 1990 SCC (51)

  8. judicial review of administrative decision-making • 3 standards of review: correctness, reasonable simpliciter and patent unreasonableness • pragmatic and functional approach • Dr Q 2003 SCC (525)

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