Deference: Constitutionally Permissible in Canada’s Current System? (Several Comments)

Prologue

In Valente, and in the jurisdiction Valente spawned, the Supreme Court has specified the  structural guarantees that are necessary for a judicial tribunal or its members to meet the rule of law requirements for judicial independence and impartiality and, as Unjust by Design (UBD)  shows, few of Canada’s tribunals or its members – indeed maybe none – in fact satisfy those requirements.

Question

Where  a tribunal fails to meet the Valente requirements for independence or impartiality, or its chair or members are not in law independent or are the subject of a reasonable apprehension of bias, how can a court justify showing Dyzenhaus’s deference of respect to a judicial decision made by such a  tribunal?

In those circumstances, how can the courts’ deference be lawful, or constitutionally permissible?

Why, in short, is the independence and impartiality of judicial tribunals and/or their chairs and members not a routine issue in judicial review proceedings?

See UBD, pages 217, 289-90

RE

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