“What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision-makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law.” SC Canada (2008) 291 D.L.R. (4th) 577

Limitations of Judicial Review - lack of expertise,

1. Expertise of administrative bodies

But Cf. Hogan J. criticizing Camara 2000 as “a classic instance of why the doctrine of curial deference has gone too far" Bar Review 2001

2. Institutional competence / Separation of powers doctrine

"this, after all, is the inescapable central question of public law in any legal system with a pretence to constitutionalism of any kind: what are the proper boundaries to the respective powers of the different branches of government, and who decides where those boundaries are drawn?” M. Hunt. OUP. 2003.

“Thus the powers of the Court include judicial review of acts of the Executive and the Legislature. It is a feature common to many democracies, particularly with a written constitution. Judicial review permits the Court to set aside executive actions or legislative measures which offend against the law or the Constitution. Judicial ‘review’ does not in such democracies give the Courts jurisdiction to exercise rather than review executive or legislative functions. Judicial review permits the Courts to place limits on the exercise of Executive or legislative power not to exercise it themselves. It deals with the limits of policy, not its substance.” Murray J. in TD v Min. of Education

3. Democratic Legitimacy

Lord Bingham in R. (Countryside Alliance) v Attorney General: “[t]he democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of [legislation] achieve through the courts what they could not achieve in Parliament”.

O'Keefe and Keegan

The Proportionality Standard

Meadows and Post Meadows caselaw

1. Doctrine of Judicial Deference as applied to Expert Administrative bodies

2. Standard of JR in light of Meadows and subsequent case law

How to link two parts?

Biehler (ILT 2013): Hardiman J., who gave a minority judgment, regarded the majority position as representing a significant transfer of power from the executive to the judicial arm of Government by affording the latter a general supervisory role over the exercise of a function conferred by law on the former. Kearns J. expressed similar views to the effect that allowing review “would represent a significant hiking up of judicial activism which would, in this case at least, result in a quite inappropriate encroachment into the decision-making functions of the Executive”. In his opinion, irrespective of how such an extended role might be presented or justified, it would involve “a merit-based review of a ministerial decision by judges who lack any particular constitutional mandate to adopt such a role, and who may be far less qualified for that purpose than the decision-maker”. In his majority judgment, Murray C.J. reiterated that, in exercising judicial review jurisdiction, the courts must respect the powers and functions conferred on the executive and legislature by the Constitution and by law. However, in his view, no question arose in relation to the courts' general jurisdiction to review executive acts or decisions and the issue was rather the particular criteria according to which the court may exercise review jurisdiction.

Through majority and minority opinions in Meadows.

Biehler distinguishes spatial (domain specific) and contextual (proportionality) approach to deference and prefers latter. 'A spatial approach focuses on the subject matter of the decision being reviewed and is by its nature less nuanced. On the other hand, a contextual approach is more “multi-textured” and may involve the court in examining a range of factors.'

All 5 SC judges in Meadows rejected 'variable intensity' or 'anxious scrutiny' approach adopted in English Courts.