Constituting the Rule of Law: Fundamental Values in Administrative Law
Bibliographic record
Abstract
Recent administrative law decisions from the Supreme Court of Canada have renewed the idea that there are unwritten principles embedded in the Canadian constitutional landscape. The author argues that the reasoning in these judgments presupposes a particular vision of constitutionalism that is incompatible with the Court's previous jurisprudence. The Court traditionally supported a formal vision of the separation of powers which categorically reserved the interpretation of law to the judiciary, but it has recently taken a more democratic view of the separation of powers which recognizes the role of administrative tribunals in determining fundamental legal values. The author discusses recent decisions of the Supreme Court of Canada which exemplify the formal and democratic visions of constitutionalism. In Cooper v. Canada (Human Rights Commission), the Court had to decide whether human rights tribunals could grant Charter remedies as a matter of constitutional principle. The majority, taking a formalistic view, concluded that the judiciary has exclusive constitutional authority to declare legislation invalid. The minority favoured the more democratic view that the tribunal’s power to decide questions of law necessarily includes the determination of constitutional issues unless the legislature has explicitly removed that power. This democratic vision of constitutionalism was elaborated in the majority opinion in Baker v. Canada (Minister of Citizenship and Immigration), where the Court replaced the traditional standard of judicial review with a more deferential approach to a tribunal’s reasons for decision. The author proposes that the basis for the exercise of any authority should be the protection of fundamental values, rather than formalistic constitutional rules on institutional structure. In this sense, determining the content of our constitutional law calls for a reciprocal relationship between the legislature and the citizen. Indeed, the democratic vision of constitutional interpretive authority promotes not only the viability of the role of law in our society, but the future legitimacy of the Canadian administrative state.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.013 | 0.013 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.003 |
| Science and technology studies | 0.017 | 0.127 |
| Scholarly communication | 0.033 | 0.012 |
| Open science | 0.003 | 0.005 |
| Research integrity | 0.008 | 0.010 |
| Insufficient payload (model declined to judge) | 0.002 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".