Respecting Deference as Respect: Rights, Reasonableness and Proportionality in Canadian Administrative Law

Abstract

The adoption of human rights instruments in common law jurisdictions has important implications for the judicial review of administrative decisions. When the exercise of an administrative discretion affects a right protected by a human rights instrument, courts in most jurisdictions adopt a form of reasonableness review that is more stringent and structured than traditional (or Wednesbury) reasonableness – usually one that adopts a ‘proportionality’ assessment. The author considers the way in which the law on this point has evolved in one common law jurisdiction – Canada. He argues that Canadian courts remain ambivalent about the use of proportionality in the administrative law context, an ambivalence rooted in an artificial distinction drawn between constitutional law and administrative law. The author argues that once this bifurcation is rejected, and a unity of public law acknowledged, proportionality may be seen as a general common law principle that, pursuant to the theory of ‘deference as respect’ developed by David Dyzenhaus, ought to be available in the judicial review of all important rights, interests or values, whether protected explicitly by written human rights instrument or not.