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Rule Of Law And Substantive Review Notes

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Rule of Law Three Features
-a) legal principle in judicial analysis
-e.g. an unwritten constitutional principle (Que Secession; Roncarelli)
-b) institutional practice that impose legal restraints on public power:
-about cts upholding the rule while being sensitive to not unduly interfering w powers delegated to admin bodies by parliament (Dunsmuir)
-all exercises of public authority must have a source in CL> thus JR seeks to ensure this
-inherent role of SCs in reviewing (Binnie: Dunsmuir)
-conception of autonomy of law and politics
-rule of law gives legitimacy to political realm (Que Secession)
-prevents arbitrariness - can occur via jurisdiction, substance (done w bias, lack of care) or procedurally (powers outside of statute) (Roncarelli)
-e.g. Insite: found Ministers decision to deny license was arbitrary, didn't further stat objectives
-c) political morality shared by Cdn polity (MA Language Reference) New Minimalist Approach to the Rule of Law (Charkaoui, Imperial Tobacco and Christie)
-narrowed scope and effect of rule of law:
-doesn't possess ability to strike down legislation based on its content
-written constitution is paramount (Imperial)
-now encompasses four principles:
-i) supreme over private and govt individuals' exercise of power
-ii) requires creation and maintenance of a positive order of laws
-iv) requires that the relationship bw state and individual be regulated by law
-v) linked to principle of judicial independence

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