D21 - Administrative Law, Tribunals and the Justice Sector
Date: Jun 4 | Time: 03:15pm to 04:45pm | Location:
The New Public Management and the Justice Sector: The State-of-the-Art: Sule Tomkinson (Université Laval)
Abstract: Important transformations are underway in the justice sector. With the advent of New Public Management (NPM) discourse, the ideas and practices related to private management have diffused in the public sector, and the use of performance evaluation systems and results-based management became the norm. These changes are presumed to improve public sector performance. While research documents the transfer of such practices to the justice sector (national and international courts and tribunals), there is no comprehensive review of the existing studies. Using a scoping review methodology, this paper takes stock of the conceptual and empirical work in relation to the use of managerial ideas and practices in the administration of justice. First, it charts how the academic scholarship examines this issue, by analyzing the type of justice system, law and policy areas considered; the methods employed; the countries studied and the chosen publication venues. Second, it identifies a discourse with three main types of justifications: politicians and practitioners expect economic, political, and organizational benefits. However, the outcomes associated with this discourse are not necessarily in line with the expectations. NPM reforms in the justice sector reconfigure professional identities and practices, trigger reputational benefits, and potentially aggravate miscarriages of justice.
Discretionary Decision-Making: The Development of Administrative Law and its Impact on the Canadian Charter: Gwyneth Bergman (Queen's University)
Abstract: The interaction between law and politics has become an increasingly important consideration in Canadian politics—particularly since the introduction of the Charter. The literature has been especially focused on how the Charter has expanded the Supreme Court’s authority to shape policy formation, and justifying judicial review of legislation. However, the Court’s relationship with our political structures extends beyond the formation and review of policy. In this paper, I address an aspect of the interaction between law and politics that has largely been ignored: the relationship between the Court and those administrative actors responsible for executing policy. Over the last few decades, administrative law—which is the area of law responsible for structuring the relationship between the Court and administrative actors— has evolved dramatically. The evolution of the standards of review and the creation of the Doré framework have transformed not only how the Court responds to administrative actors, but has also altered the relationship between administrative law and the Charter. That relationship is dynamic, and raises important questions for political scientists about where legislative intent can be found, who has authority to interpret that intent, and whether delegation of authority by parliament inherently warrants deference by the Court. Through an analysis of s. 2(a) freedom of religion cases, this paper argues that administrative law has a deep, and largely unrecognized, role in shaping how the Court interprets and applies Charter rights, freedoms, and values, and has, to some extent, altered the balance of power between the Court and state actors.
The Dunsmuir Effect: Trends in Judicial Review of Ontario’s Administrative Decision Makers: David Said (University of Guelph)
Abstract: Studies of judicial behaviour in Canadian political science have usually focused on the constitutionality of legislation. Unlike the judicial review of the government’s legislative powers, where the courts may invalidate or strike down laws, the administrative context offers a different and often more complex set of avenues for judicial action. In many of these cases, the question is not simply constitutional or not, but rather the “reasonableness” of the decision made by the administrative tribunal. In other instances, however, the court may evaluate the decision on a “correctness” standard that is more exacting and thus more prone to the substitution of judicial preference in place of the tribunal’s decision. The direction established by the Supreme Court in Dunsmuir has guided the standard of review in administrative law cases over the last decade and yet there remains significant disagreement about whether this guidance leads to more or less deference towards administrative decision makers. This paper examines the judicial review of 1,151 administrative decisions by the Ontario Superior Court of Justice between 2009 and 2018. The analysis demonstrates that while there are trends towards selecting a more deferential standard when reviewing administrative decisions, there are some variations between administrative agencies that are worth further examination. The findings in this paper signifies some of the existing conditions under which reviewing judges will or will not defer to the decisions of administrative bodies. Examining them more closely provides further opportunity for political scientists to conduct further research in the area of administrative law.
Participants: Gwyneth Bergman (Queen's University)David Said (University of Guelph)Sule Tomkinson (Université Laval)