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May Advocate 2017

364 V VOL.O L . 75 7 5 PART P A R T 3 3 M MAY A Y 2017 2 0 1 7 THE ADVOCATE LEGAL AND PHILOSOPHICAL UNDERPINNINGS The issue of what power and deference should be accorded to administrative tribunals is a long-standing philosophical debate in the Supreme Court of Canada. The court has waffled from one perspective to another depending on the composition of the court. The current dispute can trace a portion of its roots to 1996, when the court considered, yet again, whether such tribunals should be allowed to consider legal inconsistencies with the Charter. The court had considered the issue in a trilogy of cases4 and had come to the conclusion that tribunals that are empowered to consider general questions of law are by necessity empowered to consider legal inconsistency with the Charter. In Cooper, the court revisited the matter. Chief Justice Lamer wrote separate concurring reasons identifying some of the key legal and philosophical points that underlie this issue. Lamer C.J.C. outlined one of the “defining features of the Canadian Constitution” 5 as the separation of powers among the three branches of government: the legislature, the executive and the judiciary. Quoting with approval Dickson C.J.C.’s reasons in Fraser v. Public Service Staff Relations Board,6 he highlighted that: There is in Canada a separation of powers among the three branches of government—the legislature, the executive and the judiciary. In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy.7 Lamer C.J.C. further highlighted the nub of the courts’ discomfort: Indeed, the rise of the administrative state has been marked by the creation of institutions other than the courts on whom the legislature has conferred the power to interpret law, a function who had hitherto been performed by the judiciary. … the fact that s. 96 binds Parliament as well as the provincial legislatures … demonstrates that the central concern of the provision is with the preservation of the judicial role. Similarly, s. 96 has also been relied on to constitutionalize judicial review of administrative decision-makers.8 Ultimately, the court in Cooper divided on the question of tribunal jurisdiction. The majority decision, written by La Forest J., recognized the Chief Justice’s concerns and pulled back the law. The majority highlighted the “practical considerations” that went to the heart of the dispute: Although I readily acknowledge that the informal and accessible process of administrative bodies may well be a considerable advantage to a party, as compared to the regular court system, there comes a point where a body such as the Commission simply does not have the mechanism in place to adequately deal with multifaceted constitutional issues. Without question there is on the surface an attraction and efficiency, at least for the complainant, in having the constitutional matter first heard by


May Advocate 2017
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