Narrow Interpretation of the APJA May Erroneously Narrow the Competence of the Regulator to Consider Constitutional Issues Including Project Impacts on Constitutionally Protected Rights
The model anticipates that constitutional law issues cannot be constrained to the definitions of the phrase 'questions of constitutional law' in the APJA.
Further, its jurisdiction to consider constitutional issues would be limited to matters within the definition of questions of constitutional law in s 10(d) of the APJA.
The word 'applicability' in s 10(d)(i) of the APJA would seem sufficiently broad to enable the Regulator to determine not only if legislation is valid but also if its own actions pursuant to valid legislation of general application may be constitutionally applicable in a particular context.
Assertions of Charter rights, particularly section 7 rights, can arise in relation to the work of the Regulator where issues of human health may be engaged (100) As such, comments about the distinctions between constitutional issues, constitutional questions, and inquiries about differing models of interpretation of the APJA, are applicable mutatis mutandis.
It is difficult to see how the Regulator may apply Charter values if a notice of question of constitutional law under the APJA is required merely to confer upon it jurisdiction to consider those values.
An initial reaction to the APJA might be that it is somehow unconstitutional.
The solution in Martin and Laseur, as taken up in the APJA, is problematic in five areas: first, the distinction between formal and informal declarations of unconstitutionality; second, the foundation of administrative power under the Charter; third, the general role of administrative tribunals in Canada's Constitution; fourth, the dissociation of administrative power and responsibility under the Constitution; and fifth, the legislative power to withdraw the power to apply the Charter.
Indeed, some jurisdictions have passed acts similar to the APJA prohibiting a range of administrative tribunals from considering the constitutional validity of legislation or regulations.
The most obvious problem with the rise of administrative power under the Charter, which the APJA tries to address, concerns the general role of administrative tribunals in the constitutional framework.
A further problem with the solution proposed in Martin and Laseur, taken up by the APJA, is the notion that legislation can withdraw constitutional jurisdiction.
The APJA and Martin and Laseur appear to take radically different positions in defining administrative power under the Charter, although both maintain the traditional isolation of statutory from constitutional interpretation.