... mandamus, certiorari, and all the lovely prerogative writs of the common law?
Public officials are very seldom permitted to make decisions at their "personal discretion (i.e. whim)". The exercise of administrative discretion is in fact subject to rather stringent requirements ... at least where I come from. And I'd hate to think that anybody in the land of the free etc. was ever subject to the "personal discretion (i.e. whim)" of any official delegated to perform any function of those governments whose acts I'd thought were so circumscribed down there.
Here, firearms officers have discretion as to the issuance of firearms permits. And judges have the authority to review the decisions made in the exercise of that discretion, and quash the decisions if they find that they were made improperly, e.g. if the decision maker:
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
(That's the codification of the provisions that replace the old prerogative writs for federal decision makers here, whose decisions may be reviewed by the Federal Court, which I cite for convenience because it's handy; the decisions of firearms officers are reviewed by the provincial superior courts.)
The fact that a decision is "discretionary" does *not* mean that it is
subjective, let alone that it may be made on a whim.
So I guess I'm just seeing another of those false dilemma thingies.
Which would you rather have:
(a) a list of criteria which, if met, require that a firearms licence be issued without regard to any other factors that may be known, or
(b) a vindictive, power-mad petty functionary able to make decisions that affect your fundamental rights without having to justify them to anybody?
Hmm.
Which would you rather do (with, once again, a tip of the hat to Firesign Theatre and gratitude for the memories of my misspent youth):
(a)
hit that little old Jew over the head with this bag of shit, or(b)
beat out that rhythm on a drum?
I'll take (c), thank you: the reasonable and real option.
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
