Tribunals, Trials, and Tribulations: The Impact of Administrative Law on Religious Freedom in the Supreme Court of Canada

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Bergman, Gwyneth
Administrative law , Supreme Court of Canada , Charter , Canadian Charter , Freedom of religion , religion , Canadian Constitution , section 2(a) , Constitutional law
Since the introduction of the Charter in 1982, the interactions between law and politics have become an increasingly important consideration in Canadian political science. The literature has focused primarily on how the Charter has expanded the Supreme Court’s authority to shape the development of legislation, as well as justifying the democratic legitimacy of judicial review of legislation. However, the Court’s relationship with our governing branches extends beyond the formation and review of legislation. In this dissertation, 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 interpreting and applying policy. Over the past several 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 not only transformed how the Court responds to administrative actors but have also altered the relationship between administrative law and constitutional law – particularly when dealing with Charter complaints. That relationship is dynamic and raises significant questions for political scientists about who has the authority to interpret and apply the Charter, how the Court understands the role of legislative intent in judicial review, and the consequences of judicial deference for the protection of rights. Through an analysis of s. 2(a) (freedom of religion) cases under the Charter, this dissertation argues that administrative law has had a deep, and largely unrecognized, role in shaping how the Court interprets and applies the Charter. I suggest that the Court’s increasing deference to administrative actors has not only weakened rights protections in Canada but has also risked undermining constitutional law as the apex of our legal hierarchy and has diminished the Court’s self-declared role as “guardian of the Constitution.”
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