The Nature of Inquisitorial Processes in Administrative Regimes: Global Perspectives

451 Pages·2014·3.94 MB·English

by  Laverne Jacobs

THE NATURE OF INQUISITORIAL PROCESSES IN ADMINISTRATIVE
REGIMES
The Nature of Inquisitorial Processes in
Administrative Regimes
Global Perspectives
Edited by
LAVERNE JACOBS
University of Windsor, Canada
SASHA BAGLAY
University of Ontario Institute of Technology, Canada
ASHGATE
© Laverne Jacobs and Sasha Baglay 2013
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise without the prior permission
of the publisher.
Laverne Jacobs and Sasha Baglay have asserted their right under the Copyright,
Designs and Patents Act, 1988, to be identified as the editors of this work.
Published by
Ashgate Publishing Limited
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Union Road
Farnham
Surrey, GU9 7PT
England Ashgate Publishing Company
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British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library The
Library of Congress has cataloged the printed edition as follows:
Jacobs, Laverne A.
The nature of inquisitorial processes in administrative regimes : global
perspectives / By Laverne Jacobs and Sasha Baglay.
pages cm Includes bibliographical references and index.
ISBN 978-1-40946947-6 (hardback) -- ISBN 978-1-40946948-3 (ebook) --
ISBN 978-1-40946949-0 (epub) 1. Abuse of administrative power. 2. Judicial
review of administrative acts. 3. Administrative procedure. 4. Administrative
law. 5. Judicial power. I. Baglay, Sasha, 1978-II. Title.
K3416.J33 2013
347’.012--dc23
2013004541
ISBN 9781409469476 (hbk)
ISBN 9781409469483 (ebk-PDF)
ISBN 9781409469490 (ebk-ePUB)
Contents
List of Tables
List of Contributors
Acknowledgments
1 Introduction
Laverne Jacobs and Sasha Baglay
PART 1 INQUISITORIAL HEARING PROCESSES IN
ADMINISTRATIVE LAW – COMPARATIVE PERSPECTIVES
2 Pragmatism v Policy: Attitude of Australian Courts and Tribunals to
Inquisitorial Process
Robin Creyke
3 From “Adversarial V Inquisitorial” to “Active, Enabling, and Investigative”:
Developments in UK Administrative Tribunals
Robert Thomas
4 Administrative Justice and Innovation: Beyond the Adversarial/Inquisitorial
Dichotomy
Samantha Green and Lorne Sossin
5 Inquisitorial Adjudication and Mass Justice in American Administrative Law
Michael Asimow
6 About the Inquisitorial Character of Administrative Litigation Procedure in
French Law
Jean-Bernard Auby
7 Inquisitorial Approaches to Refugee Protection Decision-making: The
Australian Experience and Possible Lessons for Canada
Gerald Heckman
PART 2 EU ADMINISTRATIVE LAW AND POLYJURAL DECISION-
MAKING
8 Inquisitorial Procedures and General Principles of Law: The Duty of Care in
the Case Law of the European Court of Justice
Herwig C.H. Hofmann
9 The European Union and the “Legitimate Use of Force”: Administrative
Inspections and Legal Safeguards
Giacinto della Cananea
PART 3 TRUTH COMMISSIONS AND PUBLIC INQUIRIES I – VIEWS
OF COMMISSIONERS
10 Reflections on the Public Inquiry into Pediatric Forensic Pathology in Ontario
Justice Stephen T. Goudge
11 Reflections on the Braidwood Inquiry
Hon. Thomas R. Braidwood, Q.C.
PART 4 TRUTH COMMISSIONS AND PUBLIC INQUIRIES II –
OBSERVERS’ REFLECTIONS
12 Public Inquiries: Independence is the Key
Gus Van Harten
13 Australian Royal Commissions and Public Inquiries: Their Use and Abuse
and Proposals for Reform
Scott Prasser
14 Home Truths about Truth Commission Processes: How Victim-Centred Truth
and Perpetrator-Focused Adversarial Processes Mutually Challenge
Assumptions of Justice and Truth
Jula Hughes
PART 5 HYBRID MODELS OF OVERSIGHT – SPECIALIZED
OMBUDS, LEGISLATIVE OFFICERS AND INVESTIGATIONS
15 Evaluating Ombuds Oversight in the Canadian Access to Information
Context: A Theoretical and Empirical Inquiry
Laverne Jacobs
16 The Evolution of the Idiosyncrasy of the Role of Ombudsman/Person in
Canada
Nora Farrell
17 Evolving Capacities: The British Columbia Representative for Children and
Youth as a Hybrid Model of Oversight
Mary Liston
Index
List of Tables
13.1 Number of Public Inquiries Established by Australian Commonwealth
Governments 1900–2005 by Decade
15.1 Access to Information Dispute Resolution in Canada – Commissioner
Processes and Powers: Provinces
15.2 Access to Information Dispute Resolution in Canada – Commissioner
Processes and Powers: Federal Government and Territories
16.1 Areas of Oversight for Legislated Ombuds of General Jurisdiction in
Canada
17.1 Oversight Models of Child Protection and Welfare Services – Comparison
across Canada: Structure
17.2 Oversight Models of Child Protection and Welfare Services – Comparison
across Canada: Functions and Powers
17.3 International Models of Children’s Representatives
List of Contributors
Professor Michael Asimow, Visiting Professor, Stanford Law School, Stanford
University, and Professor of Law Emeritus, UCLA School of Law, USA
Professor Jean-Bernard Auby, Director of the Center on Changes in Governance
and Public Law, Sciences Po (Institut d’Etudes Politiques de Paris), France
Professor Sasha Baglay, Faculty of Social Science and Humanities, University of
Ontario Institute of Technology, Canada Hon. Thomas R. Braidwood, Q.C.,
retired Justice of the British Columbia Court of Appeal and Commissioner of the
Commissions of Inquiry into the Use of Conducted Energy Weapons in British
Columbia, Canada Professor Robin Creyke, College of Law, Australian National
University and Senior Member, Administrative Appeals Tribunal, Australia
Professor Giacinto della Cananea, Professor of Administrative Law and EU
Administrative Law, University of Rome “Tor Vergata”, Italy Dr. Nora J.
Farrell, Ombudsperson, Ryerson University, Canada Justice Stephen T. Goudge,
Court of Appeal for Ontario, Canada and Commissioner of the Inquiry into
Pediatric Forensic Pathology Ms. Samantha Green, J.D. 2012 (University of
Toronto), Toronto, Canada Professor Gerald Heckman, Faculty of Law,
University of Manitoba, Canada Professor Herwig C. H. Hofmann, Professor of
European and Transnational Public Law and Jean Monnet Chair at the
University of Luxembourg, Luxembourg Professor Jula Hughes, Faculty of Law,
University of New Brunswick, Canada Professor Laverne Jacobs, Faculty of
Law, University of Windsor, Canada Professor Mary Liston, Faculty of Law,
University of British Columbia, Canada Professor Scott Prasser, Public Policy
Institute, Australian Catholic University, Australia Professor Lorne Sossin,
Dean, Osgoode Hall Law School, York University, Canada Dr. Robert Thomas,
Professor of Public Law, School of Law, University of Manchester, UK
Professor Gus Van Harten, Osgoode Hall Law School, York University, Canada
Acknowledgments
There are many people whom we would like to thank and without whom this
project would not have been realized. The Social Sciences and Humanities
Research Council of Canada, the Faculty of Law of the University of Windsor,
the University of Windsor, the Ontario Ministry of the Attorney General, and the
Law Foundation of Ontario all provided generous support.
We are grateful to the contributors to this collection, who were also
participants at the international research workshop, “The Nature of Inquisitorial
Processes in Administrative Regimes: Global Perspectives,” which was held at
the University of Windsor, Faculty of Law on May 26–27, 2011. They traveled,
at times very far distances, to participate in the workshop and took the time to
carefully revise their papers for this edited collection.
We thank the discussants at the workshop for their knowledgeable insights:
Michael Gottheil, Ian Greene, Audrey Macklin, Marcia Valiante, Christopher
Waters, and David Wright. A number of University of Windsor law students
have assisted in the preparatory phases through to the editing of this volume.
These students include the Comparative Administrative Law Fellows of the
summer of 2011: Melissa Kwok, Maria Mavrikkou and Ki Lin Tay; and research
assistants John Brennan, Lauri Daitchman, Navjot Grewal, Krina Mahaisuria,
Heather McMahon, Alicia Maiuri, and Cynthia Morgan. We are grateful to them
also. Finally we thank the anonymous reviewers and the editors at Ashgate for
their invaluable feedback and assistance in the publication of this book.