The Canadian Charter of Rights and Freedoms can be interpreted in two ways regarding its relation with administrative law. First, as an alternative statutory remedy against government; second, as a general democratic mandate to reconsider the foundations of Canadian administrative law. Nevertheless, in spite of the entrenchment of the Charter, the former interpretation has prevailed. Indeed, since 1982, the Charter has developed as a distinct body of rights operating separately from administrative law remedies. / The interpretation of the Charter as a distinct statutory remedy has caused problems in both the definition of administrative power under the Charter and in the judicial review of administrative action. First, the interpretation of the Charter as autonomous remedy has polarized the definition of administrative power insofar as administrative authorities can either apply or not apply the Charter. However, both solutions are extreme: administrative authorities are not superior courts; conversely, the notwithstanding clause set aside, the power to give effect to the Charter cannot validly be withdrawn. Second, at the judicial level, even though it is part of the Constitution, the Charter has been treated as an autonomous cause of action against government, thus distinct from inherent judicial powers. This has prompted a separate regime of judicial power under the Charter, and separate constitutional and administrative law standards of review. / However, the autonomy of the Charter and administrative law, at both administrative and judicial levels, is being reconciled through the integration of the Charter into the process of statutory interpretation, thus minimizing the distinction between "administrative law" and the "law of the Charter".
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:QMM.85217 |
| Date | January 2005 |
| Creators | Lambert, Nicolas C. G. |
| Publisher | McGill University |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Format | application/pdf |
| Coverage | Master of Laws (Institute of Comparative Law.) |
| Rights | All items in eScholarship@McGill are protected by copyright with all rights reserved unless otherwise indicated. |
| Relation | alephsysno: 002227255, proquestno: AAINR12971, Theses scanned by UMI/ProQuest. |
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