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Judicial Review -- The Residual Role of the Courts

At the beginning of this sector, in advancing the need for more effective administrative remedies, I remarked on the limitations of judicial review as the primary vehicle for redressing injustices behind the walls. These limitations flow in part from the small number of lawyers interested in the work and the non-existent or low level of legal aid coverage -- the latter contributing to the former. However, in setting the legal thresholds for judicial review, the courts play an important part in ensuring that the writ of justice follows prisoners into the prison. In Sector 5, in describing the case of Fitzgerald v. Trono ([1994] B.C.J. No. 1534), I explained how judges, when faced with the argument that a correctional administrator has made the wrong decision regarding transfer or segregation, will not substitute their own view of what, on the facts, the "correct" decision might be; rather, they will interfere only if the decision is "patently unreasonable," in the sense that no reasonable administrator could have come to that decision on the evidence before him or her. By this standard of patent unreasonableness, a correctional administrator has "the right to be wrong." In recent years, however, the Supreme Court of Canada has articulated the concept of a "spectrum of standards of review." Prior to the Supreme Court decision in Southam, there had been two standards of judicial review, the "correctness" standard and the "patent unreasonableness" standard, the latter representing the most deferential standard and the former the least deferential. Within this dichotomy, most of the case law involving decisions of correctional authorities -- like Fitzgerald -- had applied the patent unreasonableness standard. In the Southam case, the Supreme Court articulated a middle ground of "reasonableness simpliciter, " which it described this way:

This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal's decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that has no basis in evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference. ( Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 56)

In Southam and subsequent cases, the Supreme Court has identified the critical path of inquiry in determining the appropriate standard of review. The most important factor, and the one most often referred to in cases dealing with judicial review of the decisions of correctional officials, is the expertise of the tribunal or official whose decision is being reviewed.

If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded. . .

Making an evaluation of relative expertise has three dimensions: the court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise. ( Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982 at paras. 32 - 33)

The deference the courts have traditionally extended to administrative tribunals is premised on the sophisticated role that these tribunals play in the modern Canadian state. For example, in relation to decisions of labour boards, the Supreme Court has stated:

The rationale for protection of a Labour Board's decisions within its jurisdiction is straightforward and compelling. The Labour Board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, the Board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area. ( Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation [1979] 2 S.C.R. 227 at 235)

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In 2008 the Supreme Court reverted to a dual standard of review, correctness and reasonableness, determining that the tripartite division had caused confusion and uncertainty in its application. See Dunsmuir v. New Brunswick, 2008 SCC 9 http://scc.lexum.umontreal.ca/en/2008/2008scc9/2008scc9.html. Mr.Justice Binnie wrote: “The repeated attempts to explain the difference between the two, was in hindsight, unproductive and distracting.”