CANADA Law and Practice Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
• the Canadian Charter of Rights and Free - doms; • the federal division of powers under the Con - stitution Act, 1867; and • the aboriginal and treaty rights guaranteed by Section 35 of the Constitution Act, 1982 (described above). In Canada, Charter rights and aboriginal and treaty rights are not absolute. Charter rights can be justifiably limited by measures that satisfy a proportionality test, which asks whether the limit: • furthered a pressing and substantial objec - tive; • was rationally connected to that objective; • was minimally impairing; and • had beneficial effects that outweighed its deleterious effects. Aboriginal and treaty rights can be limited for compelling and substantial objectives and must be consistent with the Crown’s fiduciary duty towards indigenous peoples. In addition, claimants may challenge executive action based on Charter values, which are dis - tinct from Charter rights. They are defined as the purposes underlying particular Charter rights and may be broader than them in certain circum - stances. Moreover, like Charter rights, Charter values give way to government interests that meet a proportionality test. The relationship between review based on Charter rights and
• the common law; • statutes, regulations, rules and soft law; and • the constitution. The common law imposes a duty of procedural fairness for administrative decisions that affect the rights, privileges or interests of an individual. The requirements of the duty of procedural fair - ness vary by context: • the nature of the decision and the process followed in making it; • the nature of the statutory scheme; • the importance of the decision to the indi - vidual affected; • the legitimate expectations of the claimant; and • the procedural choices made by the decision- maker. The core elements of procedural fairness are: • notice; • the right to fair hearing; and • in certain contexts, written reasons for a deci - sion. However, the exact requirements of procedural fairness vary by context. The standard of review for procedural fairness is correctness. In addition, administrative decision-makers must allow procedures set out in their enabling leg - islation, or secondary legislation (rules, regula - tions) promulgated by Cabinet, the responsible minister or the decision-maker itself. In addition, administrative decision-makers may adopt soft law instruments setting out procedures. Moreo - ver, several provinces (Ontario, Quebec, Alberta, British Columbia) have enacted general proce - dural statutes that apply to a variety of executive decision-makers. Failure to follow prescribed
Charter values is evolving. 10.3 Procedural Errors
Claimants can also challenge a government decision on the basis that the executive did not follow the relevant procedure for that decision. There are three sources of procedural obliga - tions:
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