Applying the Charter to Discretionary Authority

Abstract

The as applied approach to dealing with the Charter considers infringements of rights within the confines of the circumstances of each case. The Supreme Court decision in Slaight Communications adopts such an approach as a way to remedy and control improper use of discretionary authority. The paper begins with a detailed examination of the Slaight decision and then continues on to explore the differences between a facial review of a statute granting discretionary power and an as applied review of the discretionary decision. Problems arise when dealing with the as applied approach and the s. I requirement of the Charter that limitations on Charter rights be prescribed by law. The author deals with the law in this area examining such issues as the requirement of precision in laws, the connection between the law and the official impugned action and the requirement of standards for an adjudicator's authority. It is submitted that the Supreme Court's approach to limiting rights could be seen as lacking a clear underlying thesis. The problem of vagueness could result in a lack of foreseeability, but a greater concern is the effect of the vagueness on the control of discretion. The author concludes by enumerating a number of advantages that justify further development of the as applied approach.