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Opening the Doré to Proportionality:
Discretionary Administrative Decisions and the Charter
by
Trevor Richard Guy
A thesis submitted in conformity with the requirements
for the degree of Masters of Laws
Graduate Department of the Faculty of Law
University of Toronto
© Trevor Richard Guy (2015)
ii
Opening the Doré to Proportionality:
Discretionary Administrative Decisions and the Charter
Trevor Richard Guy
Master of Laws
Faculty of Law
University of Toronto
2015
Abstract
In Doré v. Barreau du Québec, 2012 SCC 12, the Supreme Court of Canada revisited the debate
over how courts should review administrative discretionary decisions implicating Charter rights.
In short, the Court held that such decisions should be reviewed using a values-based,
administrative law approach focused on proportionality, one that asks whether the decision-
maker has properly balanced the relevant Charter values and statutory objectives at issue. This
thesis will explore several problematic aspects of Dore’s reasoning and implications, and dispute
the Court’s claim that there is conceptual harmony between the traditional Oakes analysis and its
new approach to reviewing the constitutionality of administrative discretionary decisions. In
doing so, this thesis will illustrate how the Doré framework subverts the guarantee that the
Charter’s rights and freedoms are subject only to “such reasonable limits prescribed by law as
can be demonstrably justified.”
iii
Acknowledgements
I am indebted to my thesis supervisor, David Dyzenhaus, for accommodating my personal
circumstances, commenting on my work under tight timelines, and for his many questions and
editorial suggestions from which my thinking and writing benefited.
I am grateful to my patient and loving wife, Marijana, who shouldered the most important work
that allowed me to produce the following: caring for our two beautiful children.
iv
Table of Contents
I. Introduction............................................................................................................. 1
II. The Court’s decision……………………………………………………………... 4
(a) The facts: from “dialogue” to discipline…………………………………... 4
(b) The issue: the Court at the crossroads……………………………………... 6
(c) The decision: the call to proportionality…………………………………... 10
III. Double take: Doré’s methodology and implications……………………………. 13
(a) How is the new framework implemented?.................................................... 14
(b) What is the standard of review?.................................................................... 23
(c) The framework’s unworkable foundation…………………………………. 26
(d) Institutional concerns……………………………………………………… 32
IV. The justification juxtaposition: proportionality v. reasonableness…………… 36
(a) The argument: the difference in deference………………………………… 37
(b) The institutional setting of reasonableness review………………………… 41
(c) The nature of reasonableness review……………………………………… 48
(d) Comparing Oakes to administrative law proportionality………………….. 55
V. Conclusion……………………………………………………................................ 61
Bibliography………………………………………………………………………. 63
1
I. Introduction
In its recent decision in Doré v. Barreau du Québec,1 the Supreme Court of Canada reengaged
“one of the most exasperating tangles in modern public law”:2 the appropriate methodology for
reviewing administrative discretionary decisions implicating Charter3 rights. For years, the
choices appeared binary. Courts used either a structured analysis under s. 1 of the Charter and
the concomitant Oakes test,4 or an administrative law standard of review. However, after
reserving their decision for almost 14 months, the Court proffered a new approach, one
embracing the unity of public law thesis that “administrative law is also constitutional law.”5
In short, the Court held that discretionary decisions implicating Charter rights should be
reviewed using an administrative law framework but with Charter-like modification. In
particular, the Court imported a distilled form of the Oakes test into the applicable standard of
review, in this case reasonableness, determining that an inquiry into reasonableness should assess
whether the decision at issue reflects a “proportionate balancing” of the Charter rights and
statutory objectives at play.6 Drawing a further comparison to the Oakes test, the Court
emphasized that its new framework gives government actors a “margin of appreciation” in
balancing Charter rights against public objectives.7 Based on these similarities, the Court
1 2012 SCC 12 [Doré].
2 Susan Gratton & Lorne Sossin, “In Search of Coherence: The Charter and Administrative Law under the
McLachlin Court” in David A Wright & Adam M Dodek, eds, Public Law at the McLachlin Court: The First
Decade (Toronto: Irwin Law Inc, 2011) 145 at 145 [Gratton & Sossin, “In Search of Coherence”]. 3 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter].
4 [1986] 1 SCR 103 [Oakes]. For the most part, I assume that the reader, like most law students, is painfully familiar
with this test. However, it is addressed more explicitly in Part IV(d) below. 5 David Dyzenhaus, “Baker: The Unity of Public Law” in David Dyzenhaus, ed, The Unity of Public Law (Portland,
Oregon: Hart Publishing, 2004) 1 at 4. 6 Doré, supra note 1 at para. 57.
7 Ibid.
2
asserted “conceptual harmony” between the Oakes test and its new approach, which it promised
would continue to ensure “rigorous Charter protection”8 notwithstanding its administrative law
foundation.
That claim, this thesis argues, is false. Despite resolving a significant jurisprudential debate,
Doré introduces more challenges than it puts to rest, challenges that I illustrate erode the
guarantee in s. 1 of the Charter that constitutional rights and freedoms are subject only to “such
reasonable limits prescribed by law as can be demonstrably justified.”
This thesis will begin in part Part II by examining Doré’s facts, along with the key parts of the
Court’s reasoning. Having laid this groundwork, Part III will outline a number of Doré’s
analytical shortcomings and implications. Among other things, it will detail how the Court’s
instruction to administrative decision-makers to consider Charter rights is little more than a
vague directive to articulate some form of “proportionality” or “balancing” of the competing
interests at issue, whatever that might be, an approach that undermines the normative priority
that Charter rights should receive and reduces them to just another “factor” that decision-makers
must consider. It will also explain how, making matters worse, the Court’s own application of
its new framework illustrates that such determinations involve minimal judicial oversight, an
example that lower courts are now following. Moreover, Part III will address the Court’s
reintroduction of the unworkable distinction between “law” and “discretion,” arguing that this
distinction not only threatens to confuse litigants and courts, but motivate governments to
download all Charter-based determinations to discretionary administrative actors. Lastly,
Part III will explore the institutional identity of those to whom the Court has now entrusted our
8 Ibid at para. 4.
3
Charter rights: for the most part, individuals who, to an unacceptable degree, lack the training,
capacity, and independence necessary to ensure the Charter’s effectiveness. All of these points,
I argue, undermine either the substance of s. 1’s guarantee or the legitimacy of those entrusted
with it.
Part IV will then address the Court’s central claim that there is “conceptual harmony” between
the Oakes and Doré frameworks. In Doré, the Court based this claim in the fact that both
methodologies involve the same basic concern for proportionality, and accord deference to
government actors in their determinations of whether that same basic concern has been fulfilled.
However, as Part IV will explain, while the object of the Oakes and Doré frameworks may be
identical (i.e., proportionality), there remains an important difference between the two: the lens
through which reviewing courts will scrutinize whether that object has been achieved. Post-
Doré, the Charter's application to legislation will continue to be reviewed under the more
searching standard of correctness, while discretionary Charter-based decision-making is now
reviewed under the more deferential standard of review of reasonableness. As I explain, this
difference is significant given two facets of modern reasonableness review. First, the Court’s
approach to modern judicial review is premised on the judiciary’s “deference as respect” towards
administrative decision-makers,9 a relationship aspiring to a collaborative effort in governance.
10
Second, the concept of reasonableness is not only unclear but, based on the Court’s current
doctrine and call for deference, is applied in a manner that strains to immunize, not invalidate,
9 See, generally, David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael
Taggart, ed, The Province of Administrative Law (Oxford: Oxford University Press, 1997) 279 [Dyzenhaus, “The
Politics of Deference”]. See also David Dyzenhaus, “Constituting the Rule of Law: Fundamental Values in
Administrative Law” (2002) Queen’s LJ 445 at 489-502 [Dyzenhaus, “Constituting the Rule of Law”]. 10
Mary Liston, “Governments in Miniature: The Rule of Law in the Administrative Law” in Colleen M Flood &
Lorne Sossin, eds, Administrative Law in Context (Toronto: Edmond Montgomery Publications, 2008) 39 at 66
[Liston, “Governments in Miniature”]; Suzanne Comtois, “From Deference to Governance” (2013) 26 CJALP 23 at
24 [Comtois, “From Deference to Governance”].
4
substantive administrative decision-making. These two facts, I argue, distinguish reasonableness
review from an Oakes test as a more deferential and, indeed, troubling standard of review,
particularly where fundamental rights are concerned.
This thesis briefly concludes in Part V by arguing that, in order for the Doré framework to truly
ensure “rigorous Charter protection” as the Court promises, it must require administrative actors
to justify their decisions in a manner that generally tracks the analytical criteria of the Oakes test.
Failing this, the Court may rightfully be accused of abdicating its responsibility to maintain the
rule of law.
II. The Court’s decision
(a) The facts: from “dialogue” to discipline
Doré’s facts are straightforward. The case arose when prominent criminal lawyer Gilles Doré11
appeared before Quebec Superior Court Justice Jean-Guy Boilard12
in a routine bail hearing.
Over the course of the proceeding, Boilard J. excoriated Doré with a number of derogatory
11
Doré is best known for representing motorcycle gang members. However, he received wide media attention after
being one of several criminal lawyers attacked and beaten, a series of events described as an “attack on the justice
system”: see “Gilles Dore Assault: Montreal Lawyer Badly Beaten, Association Condemns Assault”, Canadian
Press (11 July 2011) online: Huffington Post <http://www.huffingtonpost.ca/2011/11/07/gilles-dore-assault-
montreal-lawyer_n_1080408.html>. 12
Justice Boilard’s conduct has raised multiple controversies, including for his previous interactions with counsel
and recusing himself in a high-profile trial: see “Judge who quit Hells Angels case acted improperly”, Canadian
Press (8 August 2003) online: The Globe and Mail <http://www.theglobeandmail.com/news/national/judge-who-
quit-hells-angels-case-acted-improperly/article535232/>. More recently, the Quebec Court of Appeal chastised his
“intrinsically sexist attitude” toward a female defence counsel: see Graeme Hamilton, “Court finds Quebec judges’
‘intrinsically sexist attitude’ toward female defence lawyer grounds for new trial”, The National Post (5 August
2014) online: National Post <http://news.nationalpost.com/2014/08/05/court-finds-quebec-judges-intrinsically-
sexist-attitude-toward-female-defence-lawyer-grounds-for-new-trial/>
5
remarks for which he was later reprimanded by the Canadian Judicial Council.13
When the
matter concluded, Doré wrote a private letter to Boilard J. rejoining in kind, calling His Honour,
among other things, “pedantic,” “petty,” “loathsome,” “arrogant” and someone with “essentially
non-existent listening skills.”14
The missive would have remained private. However, Doré then
made an official complaint about Boilard J., resulting, ironically, in the letter grounding
disciplinary action against Doré. Specifically, the Disciplinary Council of the Barreau du
Québec found that Doré violated art. 2.03 of Québec’s Code of ethics of advocates,15
which
requires that “[t]he conduct of an advocate must bear the stamp of objectivity, moderation and
dignity.”16
Doré had argued that art. 2.03 was an unjustifiable infringement of his right to freedom of
expression under s. 2(b) of the Charter. The Disciplinary Council disagreed. While it found that
art. 2.03 infringed s. 2(b), the Council justified the infringement as “a limitation on freedom of
expression that is entirely reasonable, even necessary, in the Canadian legal system, where
lawyers and judges must work together in the interest of justice.”17
Moreover, the Council held,
Doré had “willingly joined a profession that was subject to rules of discipline that he knew
would limit his freedom of expression,” an agreement made in exchange for “the privileges
conferred on lawyers as members of an ‘exclusive profession’.”18
Ultimately, Doré had gone too
far: his displeasure with Boilard J. may have been justifiable, but his response “overstepped” the
13
Doré, supra note 1 at para. 14. 14
Ibid at para. 10. These are only a few choice words. 15
RRQ 1981, c B-1, r 1. 16
Doré, supra note 1 at para. 16. 17
Ibid at para. 17. 18
Ibid.
6
profession’s “generally accepted norms of moderation and dignity.”19
Consequently, the Council
reprimanded Doré and suspended his ability to practice law for 21 days.20
The Tribunal des professions,21
Superior Court of Quebec,22
and Quebec Court of Appeal23
all
refused to interfere with the Council’s decision.
(b) The issue: the Court at the crossroads
The central issue before the Supreme Court of Canada was the constitutionality of the Council’s
decision to reprimand Doré. (He declined to challenge the Code of ethics, or his suspension’s
length.) This, in turn, raised the matter over which there was “some confusion” below,24
namely
the approach by which the Court should review the Council’s decision given that Charter rights
were implicated: should the Court use the standard mandated by s. 1 to determine whether the
state had justified an infringement of a constitutional right (i.e., the Oakes test) or, instead, the
administrative law framework normally employed to review discretionary administrative
decisions (i.e., review for “reasonableness”). For many years, and notwithstanding, or perhaps
particularly because of, its increasing attribution of Charter jurisdiction to administrative actors,
the Court was deeply conflicted over this choice. This conflict reflected the Court’s competing
19
Ibid at para. 70. 20
Ibid at para. 17. 21
2007 QCTP 152 (CanLII). 22
2008 QCCS 2450 (per Déziel J.). 23
2010 QCCA 24 (per Rochon, Dufresne and Léger JJ.A). 24
Doré, supra note 1 at para. 23. Citing LeBel J.’s judgement Multani v. Commission scolaire
Marguerite-Bourgeoys, 2006 SCC 6, the Tribunal des professions held that a full Oakes analysis was not required
and, instead, reviewed the Discipline Council’s decision on a standard of correctness for proportionality. On
judicial review, the Superior Court of Quebec concluded that the Tribunal had “implicitly” held that the restriction
was “justified in a free and democratic society,” satisfied that the decision satisfied the test in s. 1 of the Charter.
The Quebec Court of Appeal applied a full s. 1 analysis. See Doré at paras. 19-21.
7
constitutional imperatives to fulfil its accountability function by ensuring that administrative
action is legally authorized and, at the same time, avoid unduly interfering in the exercise of
functions that Parliament and legislatures delegated to administrative actors.25
Thus, on one hand, beginning with its decision in Slaight Communications Inc. v. Davidson,26
the Court had frequently reviewed administrative decisions implicating Charter rights using a
traditional Oakes analysis.27
Under this approach, the Court maintained a conceptual divide
between administrative law and Charter values, rejecting the “unity of public law” thesis
positing a substantive value-laden role for administrative law.28
Based on a perceived
inadequacy to deal with Charter infringements in the exercise of discretion,29
specifically the
inability to "unravel” the relevant value inquiries,30
administrative law was emptied of its ability
to control the exercise of discretion on the basis of any reference to values and, instead, trained
solely on policing the formal legal limits of “jurisdiction.”31
Notwithstanding the Court’s claim
that it did not want to “reduce” Charter rights and freedoms to “mere administrative law
principles or, at the very least, cause confusion between the two,”32
critics argued that this
25
Matthew Lewans, “Administrative Law, Judicial Deference, and the Charter” (2014) 23 Const Forum Const 19 at
21 [Lewans, “Administrative Law, Judicial Deference, and the Charter”]. See also, generally, Dyzenhaus, “The
Politics of Deference”, supra note 9; and Liston, “Governments in Miniature”, supra note 10 at 65. 26
[1989] 1 SCR 1038 [Slaight]. 27
See also Stoffman v. Vancouver General Hospital, [1990] 3 SCR 483; Dagenais v. Canadian Broadcasting Corp.,
[1994] 3 SCR 835; Ross v. New Brunswick School District No. 15, [1996] 1 SCR 825; Eldridge v. British Columbia
(Attorney General), [1997] 3 SCR 624; Eaton v. Brant County Board of Education, [1997] 1 SCR 241; Little Sisters
Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69; United States v. Burns, 2001 SCC 7; and R.
v. Mentuck, 2001 SCC 76; Multani; Greater Vancouver Transportation Authority v. Canadian Federation of
Students — British Columbia Component, 2009 SCC 31. 28
Gratton & Sossin, “In Search of Coherence”, supra note 2 at 16. 29
Doré, supra note 1 at para. 26. 30
Geneviève Cartier, “The Baker Effect: A New Interface Between the Canadian Charter of Rights and Freedoms
and Administrative Law – the Case for Discretion”, in David Dyzenhaus, ed, The Unity of Public Law (Portland,
Oregon: Hart, 2004) 61 at 68 [Cartier, “The Baker Effect”]. 31
Cartier, “The Baker Effect”, ibid at 68-69, 73-5. See also Gratton & Sossin, “In Search of Coherence”, supra note
2 at 16. 32
Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 at para. 16.
8
“impoverished picture of administrative law” undervalued its potential to safeguard
constitutional rights as effectively as the Charter.33
On the other hand, the Court’s conception of the administrative state, along with its vision of the
relationship between administrative law and the Charter, was evolving. Beginning with its
decision in CUPE v. N.B. Liquor Corporation,34
the Court signalled a doctrinal shift from its
longstanding Diceyan conception of the separation of powers in which the executive’s role was
limited to merely applying, not fashioning, the law.35
As part of this development, the Court
appeared willing to recognize that administrative law principles could play a potent role in
assessing Charter-compliance and, thus, that it was prepared to review discretionary decisions
engaging the Charter accordingly.36
The tension between these positions was highlighted in Multani v. Commission scolaire
Marguerite-Bourgeoys,37
the Court’s last decision before Doré to consider the appropriate
methodology for reviewing discretionary decisions engaging the Charter. In that case, involving
a school board’s decision to prohibit a Sikh student from wearing his kirpan to school, the Court
33
Cartier, “The Baker Effect,” ibid at 68-9. See also Gratton & Sossin, “In Search of Coherence”, supra note 2 at
16; David Mullan, “Administrative Tribunals and Judicial Review of Charter Issues after Multani” (2006) 21 NJCL
127; and Robert Leckey, “Prescribed by Law/Une règle de droit” (2007) 45 Osgoode Hall LJ 571 [Leckey,
“Prescribed by Law”]. 34
[1979] 2 SCR 227. 35
See, generally, Dyzenhaus, “The Politics of Deference,” supra note 9. See also David Dyzenhaus & Evan Fox-
Decent, “Rethinking the Process/Substance Distinction: Baker v. Canada” (2001) 51 UTLJ 193 at 240 [Dyzenhaus
& Fox-Decent, “Rethinking the Process/Substance Distinction”]; Liston, “Governments in Miniature”, supra note 10
at 39-84. 36
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817; Trinity Western University v.
British Columbia College of Teachers, 2001 SCC 31; Chamberlain v. Surrey School District No. 36, 2002 SCC 86;
Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2; Pinet v. St. Thomas Psychiatric Hospital,
2004 SCC 2; Lake v. Canada (Minister of Justice), 2008 SCC 23; Canada (Prime Minister) v. Khadr, 2010 SCC 3;
Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23; and Németh v. Canada
(Justice), 2010 SCC 56. 37
2009 SCC 31 [Multani].
9
rendered three sets of concurring reasons, each employing different frameworks for assessing the
constitutionality of the board’s decision. Speaking for the majority, Charron J. applied a formal
Oakes test,38
concerned that constitutional law standards would otherwise be “dissolved” into
administrative law ones.39
Though arriving at the same result, Abella and Deschamps JJ. held
that the case was “more appropriately decided by recourse to an administrative law review,”40
concluding that the Oakes test was developed to assess “legislative policies” (i.e., “laws”), not
individualized decisions.41
For this reason, they found that the general principles of judicial
review should apply to all exercises of discretion. Lastly, foreshadowing the Court’s judgment
in Doré, LeBel J. reached the same result by applying a modified Oakes test to the board’s
determination, reasoning that “[i]n the case of an individualized decision made pursuant to
statutory authority, it may be possible to dispense with certain steps of the analysis.”42
For him,
the issue became “one of proportionality or, more specifically, minimal limitation of the
guaranteed right, having regard to the context in which the right has been infringed.”43
Standing at the same crossroads in Doré, the Court framed the issue as a choice between two
general approaches.44
Speaking for the Court, Abella J. described the fork in the road as follows:
Today, the Court has two options for reviewing discretionary administrative
decisions that implicate Charter values. The first is to adopt the Oakes
framework, developed for reviewing laws for compliance with the Constitution. 38
Ibid at paras. 42-79. 39
Ibid at para. 16. 40
Ibid at para. 85. 41
Ibid at para. 121. 42
Ibid at para. 155. 43
Ibid. 44
For the sake of convenience, I have also discussed the central issue as a choice between two analytical
frameworks. However, I recognize that, at the time, the Court had also decided cases in which it had taken a
blended approach, segmenting the issues for review under either constitutional or administrative law frameworks:
see, for example, Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1. The Court recently
cautioned against such an approach: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC
36.
10
This undoubtedly protects Charter rights, but it does so at the risk of undermining
a more robust conception of administrative law. In the words of Prof. Evans, if
administrative law is bypassed for the Charter, “a rich source of thought and
experience about law and government will be overlooked.”
The alternative is for the Court to embrace a richer conception of administrative
law, under which discretion is exercised “in light of constitutional guarantees and
the values they reflect”…Under this approach, it is unnecessary to retreat to a s. 1
Oakes analysis in order to protect Charter values. Rather, administrative
decisions are always required to consider fundamental values. The Charter
simply acts as “a reminder that some values are clearly fundamental and…cannot
be violated lightly.”45
(c) The decision: the call to proportionality
In essence, Abella J. chose both options. In her view, it was “possible to reconcile the two
[constitutional and administrative law] regimes in a way that protects the integrity of each.”46
The solution: a distilled form of the Oakes test that worked “the same justificatory muscles” of
balance and proportionality.47
As she suggested in Multani, Abella J. held that a formulaic Oakes test should be reserved for “a
law or other rule of general application.”48
Thus, she held, the test to review the constitutionality
of individualized decisions “must necessarily be adjusted.”49
Her adjustment was deceptively
simple. Building on LeBel J.’s concurring reasons in Multani, Abella J. held that courts
reviewing administrative decisions50
implicating Charter rights should apply the reasonableness
45
Doré, supra note 1 at paras. 34-35. 46
Ibid at para. 4 47
Ibid at para. 5. 48
Ibid at para. 39. 49
Ibid at para. 4. 50
I recognize that Doré involved an adjudicative administrative decision and, therefore, its central holding might be
limited to that context. However, Abella J. also appears to address administrative decision-makers implicating
Charter rights more generally, for example at para. 24, suggesting Doré has broad application. The same query
arose after Dunsmuir v. New Brunswick, 2008 SCC 9. Because Dunsmuir involved an adjudicative administrative
11
standard to ensure that such decisions entail the same justificatory exercise. Put another way,
Abella J. turned Oakes’ normative engine – proportionality – into the central criterion of
reasonableness.51
As she explained:
In the Charter context, the reasonableness analysis is one that centres on
proportionality, that is, on ensuring that the decision interferes with the relevant
Charter guarantee no more than is necessary given the statutory objectives. If the
decision is disproportionately impairing of the guarantee, it is unreasonable. If,
on the other hand, it reflects a proper balance of the mandate with Charter
protection, it is a reasonable one.52
Abella J. emphasized that this approach would not erode the Charter’s rights and freedoms. To
the contrary, affirming that “the protection of Charter guarantees is a fundamental and pervasive
obligation, no matter which adjudicative forum is applying it,” she claimed that her new
framework would still ensure “rigorous Charter protection.”53
Abella J. also outlined a two-fold process for how administrative decision-makers should apply
Charter values in the exercise of statutory discretion. First, she held, the decision-maker must
identify and consider the relevant statutory objectives.54
Next, the decision-maker should ask
“how the Charter value at issue will best be protected in view of the statutory objectives,”55
this
decision, doubt existed as to whether its revised standard of review framework applied to all administrative decision
makers: see, for example, Toussaint v. Canada (Attorney General), 2011 FCA 213 at para. 19. The Court recently
confirmed that it generally does: Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40 at
paras. 53-54. That said, the framework still does not apply to decisions made in a “legislative capacity”: see, for
example, Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 (concerning the judicial review of a
municipal taxation by-law) and Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64
(concerning regulations passed by a provincial cabinet). 51
Sheila Wildeman, “Pas de Deux: Deference and Non-Deference in Action” in Colleen M. Flood and Lorne Sossin,
eds, Administrative Law in Context, 2d ed, (Toronto: Emond Montgomery, 2013) 323 at 359 [Wildeman, “Pas de
Deux”]. 52
Doré, supra note 1 at para. 7. 53
Ibid at para. 4. 54
Ibid at para. 55. 55
Ibid at para. 57.
12
being the “the core of proportionality exercise.”56
On judicial review, she explained, “the
question becomes whether…the decision reflects a proportionate balancing of the Charter
protections at play.”57
Here, Abella J. saw “conceptual harmony” between reasonableness
review and the Oakes framework since both approaches “contemplate giving a ‘margin of
appreciation,’ or deference, to administrative or legislative bodies in balancing Charter values
against broader objectives.”58
Applying this modified reasonableness standard to the facts, Abella J. upheld the Council’s
decision. The necessary balance, she held, was between the “fundamental importance of open,
and even forceful criticism of our public institutions,” and “the need to ensure civility within the
profession.”59
After reviewing Doré’s invective, Abella J. underscored the Council’s conclusion
that Doré had “overstepped” the profession’s “generally accepted norms of moderation and
dignity.”60
She then offered the brusque conclusion that the Council’s decision “cannot be said
to represent an unreasonable balance of Mr. Doré’s expressive rights with the statutory
objectives.”61
56
Ibid at para. 56. 57
Ibid at para. 57. 58
Ibid. 59
Ibid at para. 66. 60
Ibid at para. 70. 61
Ibid at para. 71.
13
III. Double take: Doré’s methodology and implications
Doré is an alluring conceit. Torn between two methodologies, the Court conflates them,
integrating “the spirit of s. 1 into judicial review.”62
In doing so, Doré purports to offer the best
of both methodological worlds in assessing the Charter-compliance of discretionary decision-
making, namely effective rights protection and contextual sensitivity. More impressively, the
decision is of a piece with L'Heureux-Dubé J.’s celebrated judgment in Baker v. Canada
(Minister of Citizenship and Immigration).63
Both envision greater control of discretionary
decision-making by importing substance and values into the administrative law concept of
reasonableness, reconceive the standard of review as something more resembling the Charter,
and, ultimately, use a requirement of justification to foster the legitimate use of public
authority.64
In this sense, both decisions reflect the Court’s disavowal of a formal conception of
the separation of powers in favour of a cooperative “culture of justification”65
– that is, as Chief
Justice McLachlin has explained, a culture in which the “exercise of public power is only
appropriate where it can be justified to citizens in terms of rationality and fairness.”66
As such,
Doré promises to resolve a significant jurisprudential debate comprehensively and progressively.
62
Ibid at para. 57. Then again, perhaps this development was entirely obviously given that the concept of
proportionality has its roots in administrative law: see Moshe Cohen-Eliya & Iddo Porat, Proportionality and
Constitutional Culture (Cambridge: Cambridge University Press, 2013) at 24 [Cohen-Eliya & Porat,
Proportionality]; Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge:
Cambridge University Press, 2012) at 177 [Barak, Proportionality]. 63
[1999] 2 SCR 817. 64
Cartier makes these points with respect to Baker in “The Baker Effect”, supra note 30 at 73, 74 and 77,
respectively. See also Geneviève Cartier, “Administrative Law: Twenty Years After the Charter” (2003) R du B
197 at 226 [Cartier, “Administrative Law: Twenty Years After the Charter”]. 65
See, generally, Dyzenhaus, “The Politics of Deference”, supra note 9. 66
The Honourable Justice Beverly McLachlin, “The Role of Administrative Tribunals and Courts in Maintaining the
Rule of Law” (1999) 12 CJALP 171 at 174-5. See also David Dyzenhaus, “Dignity in Administrative Law: Judicial
Deference in a Culture of Justification”, The 23rd Annual McDonald Lecture in Constitutional Studies (2012) Rev
Const Stud 87 at 110-1 [Dyzenhaus, “Dignity in Administrative Law”]; and, generally, “Law as Justification:
Etienne Mureinik’s Conception of Legal Culture” (1998) 14 SAJHR 11 [“Law as Justification”].
14
But Doré leaves much to be desired. As this section explains, the Court’s proposed framework,
along with its initial application, presents a number of practical and doctrinal problems
undermining the guarantee in s. 1 of the Charter that constitutional rights and freedoms are
subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.”
(a) How is the new framework implemented?
To begin, Doré articulates a confusing message about the interests that administrative decision-
makers are required to balance. In particular, the decision vacillates between discussion of
Charter rights and Charter values, referencing each at almost equal turns. This is odd. Given
that Doré’s claim was based on the guarantee of freedom of expression in s. 2(b), the Court had
no need to extend its language beyond talk of constitutional rights. As a result, commentators
have wondered what this extension was meant to convey or, perhaps, portend.67
Is the Court
gesturing towards a more expansive role for administrative law to bridle executive action, one
based on the inchoate substratum of Charter values? If so, how exactly should administrative
actors use the Charter values currently identified, along with any others the Court (or they, if
permitted) might recognize?
67
Lorne Sossin and Mark Friedman, “Charter Values and Administrative Justice” (2014) online:
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2389809> [Sossin & Friedman, “Charter Values”]; David
Mullan, “Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action – The
Top Fifteen” (2013) 42 Advocates’ Q 1 at 54 [Mullan, “Unresolved Issues”]; Wildeman, “Pas de Deux”, supra note
51 at 362; Evan Fox-Decent and Alexander Pless, “The Charter and Administrative Law: Cross-Fertilization or
Inconsistency?” in Colleen M Flood and Lorne Sossin, eds, Administrative Law in Context, 2d ed, (Toronto: Emond
Montgomery, 2013) 407 at 433 [Fox-Decent & Pless, “The Charter and Administrative Law”].
15
Charter values might be important in a number of different contexts. Administrative decision-
makers might use Charter values, for example, to inform the content of Charter rights,68
develop
regime-specific doctrines,69
or make procedural or evidentiary rulings.70
Indeed, such
applications may provide those statutorily prohibited from applying the Charter with a
convenient workaround.71
In circumstances in which Charter rights do not apply, Charter
values may also serve as an effective means to ensure that government decision-makers act
“compassionately, in a way responsive to the individuals they serve.”72
In this respect, Charter
values should have no less purchase in shaping the contours of public administration than the
content of the common law.73
And Charter values may even play a limited role in how
administrative decision-makers interpret their home statutes.74
Although the Court has
repeatedly maintained that the Charter should only play such a role in the rare circumstance of a
68
Gosselin v. Québec (Attorney General), [2002] 4 SCR 429 at para. 202 per Bastarache J. 69
I am thinking here of Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care
Professionals, 2011 SCC 59, in which the Court held that labour arbitrators may properly develop doctrines and
fashion remedies appropriate in their field, drawing inspiration from, among other things, general legal principles.
For that reason, the Court applied a standard or reasonableness to an arbitrator’s application of the equitable doctone
of estoppel. 70
See, for example, RJW (Re), 2014 ABTSB 274, in which the Alberta Transportation Safety Board made an
evidentiary ruling on the basis of Charter considerations. See also E. Grof Livestock Ltd. v. Canada (Canadian
Food Inspection Agency), 2014 CART 11, and Tao v. Canada (Canada Border Services
Agency), 2014 CART 6, in which the Canada Agricultural Review Tribunal considered Charter values in
developing the content of procedural fairness. 71
RJW (Re), 2014 ABTSB 274. Although the Board recognized that it was prohibited by Alberta’s Administrative
Procedures and Jurisdiction Act, RSA 2000, c. 43 from applying the Charter, it held, at para. 49, that it had a duty
to consider the content of the duty of fairness with reference to Charter values. 72
Angela Cameron and Paul Daly, “Furthering Substantive Equality Through Administrative Law: Charter Values
in Education” (2013) 63 Sup Ct L Rev 169 at 184-5 [Cameron & Daly, “Furthering Substantive Equality”]. 73
See, for example, R. v. Salituro, [1991] 3 SCR 654; Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130
at para. 82 et seq.; M. (A.) v. Ryan, [1997] 1 SCR 157 at para. 23; R.W.D.S.U., Local 558 v. Pepsi-Cola Canada
Beverages (West) Ltd., 2002 SCC 8; WIC Radio Ltd. v. Simpson, 2008 SCC 40 at para. 16; Grant v. Torstar Corp.,
2009 SCC 61 at para. 44. 74
Cameron & Daly, “Furthering Substantive Equality”, supra note 73 at 190-1; Sossin & Friedman, “Charter
Values”, supra note 68 at 24.
16
“genuine ambiguity,”75
a principle it has reaffirmed since Doré,76
the possibility nonetheless
remains.
In this context, however, the Court’s reference to Charter values is best seen as a distracting
stand-in for constitutional rights.77
On this reading, the Court’s reference to values, along with
its emphasis on proportionality, is consistent with what Grégoire Webber describes as “the
received approach” to the limitation of rights. Under this approach, to which courts have
adhered “almost without exception,”78
rights are conceived not as “rules or standards apt to be
applied, but rather principles to be optimized.”79
This conception flows from the fact that bills of
rights, like the Charter, “proceed largely in abstractions” on “grand formulations.”80
In this
respect, the received approach “sees rights everywhere but leaves rights controlling nowhere.”81
In a culture of justification, this is particularly appealing since the expansion of rights resulting
from their rebranding as values consequently expands the scope of government action that must
be justified.82
But with this benefit comes a difficulty. The indeterminate nature of rights
“incessantly confronts the complex range of ends pursued by free and democratic societies.”83
75
Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 62. However, the Charter may, it seems,
always inform the interpretation of human rights legislation given that both share common objectives and thus
should be interpreted congruently: Dallaire v. Les Chevaliers de Colomb, 2011 HRTO 639 at para. 22. 76
R. v. Clarke, 2014 SCC 28 at para. 12. 77
Audrey Macklin, “Charter Right or Charter-Lite? Administrative Discretion and the Charter” (2014) 67 Sup Ct L
Rev (2d) 561 at 562-3 [Macklin, “Charter Right or Charter-Lite”]. Professor Macklin suggests that the Court’s
sematic toggling between values and rights is linked to the analytical framework by which the latter may be limited
using the concept of proportionality. I agree. However, unlike Professor Macklin, I offer a normative account. 78
Grégoire CN Webber. “Rights and Rule of Law in the Balance” (2013) 129 Law Q Rev 399 at 409 [Webber,
“Rights and the Rule of Law”]. Webber discusses the same concept in “On the Loss of Rights” in Grant Huscroft,
Bradley W Miller & Grégoire Webber, eds, Proportionality and the Rule of Law: Rights Justification, Reasoning
(New York, Cambridge University Press, 2014) 123; “Proportionality, Balancing, and the Cult of Constitutional
Rights Scholarship” (2010) 23 Can JL & Jur 179; and “Constituting Rights by Limitation” (2008) online:
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1322812> [Webber, “Constituting Rights by Limitation”]. 79
Webber, “Rights and the Rule of Law”, ibid at 409. 80
Ibid at 3-4. 81
Webber, “Constituting Rights By Limitation”, supra note 78 at p. 1. 82
Cohen-Eliya & Porat, Proportionality, supra note 63 at 118-9. 83
Webber, “Rights and the Rule of Law”, supra note 78 at 409.
17
As a result, the received approach necessitates the ability of those applying it to negotiate
between conflicting values or principles. The solution is the principle of proportionality, through
which it conducts this negotiation, again using this same currency of values, interests, or
principles.84
This is precisely the model embodied in the Oakes test.
Turning to Doré, this account synchronizes Charter values with Charter rights, rationalizing
their repeated exchange. In short, the Court uses the concept of Charter rights qua values to
enhance the Charter’s guarantees by reading them as expansively as possible. At the same time,
the Court recognizes that these values qua rights must also give way to justified limitations,
based on proportionality and balancing, to accommodate good government. Context is key, as
always in administrative law and with the Court’s decisions. In Doré’s context – i.e., resolving
the inevitable clash between constitutional rights and statutory imperatives – is it difficult to see
how the Court’s repeated toggling between Charter rights and Charter values can have any other
meaningful reading.
Multiple courts have applied Doré with this same understanding. For example, in Ktunaxa
Nation v. British (Forests, Lands and Natural Resources),85
the British Columbia Supreme Court
considered a claim mounted by an Aboriginal Band challenging the proposed construction of a
ski resort on Crown land. The Band alleged that the resort would be erected on a sacred site
inhabited by the Band’s Grizzly Bear Spirit, causing the Spirit to leave and, with it, the Spirit’s
“assistance and guidance.”86
Thus, the Band claimed, the resort’s construction would infringe its
freedom of religion under s. 2(a) of the Charter. Dismissing the claim, the court found that the
84
Webber, “Rights and the Rule of Law”, ibid at 410-11. 85
2014 BCSC 568. 86
Ibid at para. 17.
18
Band failed to satisfy the strictures of the Supreme Court’s most recent articulation of the test for
an infringement of s. 2(a).87
The court might have easily relied on any number of Charter values
to facilitate the band’s claim. In Oakes, for example, Dickson C.J. identified the values of
“accommodation for a wide variety of beliefs” and “respect for cultural and group identity” as
the genesis for the rights and freedoms guaranteed by the Charter,88
values that could have easily
applied to the facts at bar. Similarly, in Alberta v. Hutterian Brethren of Wilson Colony,89
the
Supreme Court linked the right to freedom of religion to the values of liberty, human dignity,
equality, autonomy, and the enhancement of democracy,90
any one of which might have also
aided the Band’s claim. Instead, the British Columbia Supreme Court’s inquiry ended with the
Band’s failure to fit itself within the jurisprudential confines of s. 2(a).
This same approach was adopted by the Quebec Court of Appeal in Québec (Procureur général)
c. Loyola High School, currently under reserve at the Supreme Court of Canada and also
involving s. 2(a), 91
as well as by the Federal Court in a case involving claims based on freedom
of expression and freedom of association.92
Other recent cases have also held that where a
statutory regime or common law doctrine already includes the type of balancing and
proportionality built into the Oakes test, neither Doré nor the concept of Charter values adds any
substantive element to the requisite analysis.93
87
Ibid at paras. 275-299. 88
Oakes, supra note 4 at para. 64. 89
2009 SCC 37 [Hutterian Brethren]. 90
Ibid at para. 88. 91
2012 QCCA 2139 at paras. 162-175. The case was argued before the Supreme Court on March 24, 2014. The
Court’s decision is under reserve. 92
Najafi v. Canada (Public Safety and Emergency Preparedness), 2013 FC 876 at paras. 21-22, 39-51. 93
Gichuru v. The Law Society of British Columbia, 2014 BCCA 396 at paras. 107-8 (involving a complaint that
British Columbia’s Human Rights Code infringed s. 15 of the Charter, which the Court of Appeal dismissed on the
basis that the Charter values at issue were “substantially equivalent” to the Code’s objectives); Mahjoub (Re), 2013
19
Still, assuming that Charter rights and Charter values are in fact coextensive, that is only one
mystery solved. Another remains: how exactly should administrative actors balance
constitutional guarantees against competing statutory objectives to determine proportionately?
Before Doré, decision-makers had the rigours of the Oakes test to guide them. In its place, they
now have the vague instruction to identify the relevant statutory objectives and “balance” them
with the operative Charter value(s).94
This directive raises two basic problems.
The first is the Court’s ambivalent, if not contradictory, description about the extent to which
Oakes figures in the analysis. In one breath, the Court jettisons the applicability of a formal s. 1
analysis, opting for a framework premised on the mere “balancing” of Charter and statutory
interests. In the next, the Court underscores the “conceptual harmony” between its new
framework to the Oakes test,95
suggesting the two are the same. Which is it – are they the same
or different? This incongruity can be expressed in another way. On one hand, the Court adopts
an approach based on reasonableness review and deference to administrative decision-makers,
fearing that, otherwise, an approach based on correctness review (i.e., Oakes) will turn every
case involving Charter rights into a de novo hearing on judicial review.96
On the other hand, the
Court assuages those who fear the consequent dilution of fundamental rights and freedoms by
asserting that its approach will ensure “rigorous Charter protection” on judicial review. Again,
both positions are incompatible.97
FC 10 at 16 (review of conditions for release, which requires a court to consider whether the conditions are a
proportionate response to the nature of the applicant’s threat to national security), 94
Doré, supra note 1 at para. 57. 95
Ibid at para. 6. 96
Ibid at para. 51. 97
Hoi L Kong, “Doré, Proportionality and the Virtues of Judicial Craft” (2013) 63 Sup Ct L Rev (2d) 501 at 509.
20
Thus, even from the outset it is not clear what the Court means when it directs discretionary
decision-makers applying Charter values to “balance” the competing interests at issue, or how
such determinations will be reviewed. Is the ultimate aim something resembling the Oakes test,
or a more flexible approach allowing decision-makers more leeway? This uncertainty, in turn,
raises a concern over s. 1’s requirement that any limits that administrative discretionary decisions
impose on fundamental rights be “reasonably and demonstrably justified.” Specifically, to the
extent that the Court’s new framework, and more accurately the modified form of reasonableness
review now applicable in the Charter context, adulterates the standard established under Oakes,
s. 1’s guarantee is diminished. This is directly related to the second basic problem with the
Court’s new methodology.
The second basic problem is the “issue of incommensurability:” put briefly, how exactly does
one balance competing principles that have no common denominator? 98
Rights or values are not
“intrinsically of a determinate or ranked weight.”99
Rather, they are opaque and aspirational
formulations which are not “wholly worked out in large measure.”100
So, too, are the statutory
objectives against which they must be pitted. How can both be put on a scale?101
Attempting to
weigh them raises a number of questions.102
For example, how should tribunals accord “weight”
to any particular interest? How might this “weight” be affected by contextual factors? Must
Charter claimants always be viewed in isolation or might they also be seen as representatives of
98
Barak, Proportionality, supra note 62 at 482. 99
Wildeman, “Pas de Deux”, supra note 51 at 362. 100
Webber, “Rights and the Rule of Law”, supra note 78 at 402. 101
In Bendix Autolitet Corp. v. Midwesco Enterprise Inc. 486 US 888 (1988), Justice Scalia observed at 897: [t]he
scale analogy is not really appropriate, since the interests on both sides are incommensurate. It is more like judging
whether a particular line is longer than a particular rock is heavy.” 102
In addressing the concept of proportionality generally, Webber asks many of these questions in “Rights and the
Rule of Law”, supra note 78 at 14, suggesting that “the repeated emphasis on the ‘structure’ of balancing can be
taken to be an oblique way of acknowledging that balancing and proportionality provide little ‘substantive’
guidance.”
21
a class of other claimants? What happens when there are more than two competing interests that
must be balanced? What if the interests being balanced “weigh” the same? And might the
calculus change depending on the nature of the interest engaged, the decision-maker’s identity,
or any other circumstances?103
The Court leaves all of these questions for administrative
decision-makers to resolve. As Sossin and Friedman charitably put it, Doré proffers a “skeletal
approach that needs to be fleshed out in the diverse contexts of administrative law.”104
In itself, this may not be an issue. Quite the opposite. Such an approach may reinforce a model
of the relationship between the judiciary and the administrative state based on a cooperative
culture of justification, allowing administrative decision-makers to develop “the law” in a
number of respects. However, it aggravates the concern over s. 1’s requirement for
“demonstrably justified” limits on Charter rights for two reasons.
First, in a certain light, the Court’s directive to “balance” competing interests is so elastic that
decision-makers can apply it as loosely or carelessly as they want, even in a manner that fails to
accord Charter rights any real weight beyond a passing reference. In fact, this is precisely how
many courts have applied Doré, as illustrated in Part IV(d), below. Obviously, such an approach
betrays the normative priority that constitutional rights should receive within the context of
s. 1,105
reducing them to simply just another factor that administrative actors have to “consider”
103
Wildeman, “Pas de Deux”, supra note 51 at 362. 104
Sossin & Friedman, “Charter Values”, supra note 68 at 10. 105
United States of America v. Cotroni, [1989] 1 SCR 1469 at pp. 1489-90 per La Forest, speaking for a majority:
In the performance of the balancing task under s. 1 it seems to me, a mechanistic approach must be
avoided. While the rights guaranteed by the Charter must be given priority in the equation, the
underlying values must be sensitively weighed in a particular context against other values of a free
and democratic society sought to be promoted by the legislature
22
when rendering decisions.106
That is to say, although s. 1’s requirement for “demonstrably
justified” limits assumes the priority of the rights they abrogate, the Court’s methodology
permits decision-makers to casually dismiss or “explain away” rights without being required to
justify their limitation in the sense mandated by Oakes or in any other sense connoted by s. 1.107
Second, and extending on this first point, Doré’s approach is particularly disconcerting given
that the fox is now firmly in charge of the hen house: under Doré, administrative decision-
makers receive deference concerning their treatment of Charter rights. True, decision-makers
must provide reasons for their decisions, an exercise that should expose any errant thumbs on the
scales balancing constitutional and statutory exigencies. But the requirement of reasons is not a
consummate safeguard. With the analytical discipline demanded by Oakes cast away, all that
appears to matter is that decision-makers articulate some “proportionality” or “balancing” of the
interests at issue, whatever that might be.108
More to the point, and moving from the object of
reasonableness review (i.e., proportionality) to its verb (i.e., a deferential process of scrutinizing
decision-making), the standard of review applied to such determinations appears to exact little
justification. As the next sections outlines, Abella J.’s application of her own framework
establishes an unsettling precedent that immediately exposes the shakiness of her claim that the
Doré framework offers “rigorous Charter protection.” In fact, Abella J.’s minimal scrutiny of
the Disciplinary Council’s decision is consistent with the Court’s modern approach to
106
Macklin, “Charter Right or Charter-Lite”, supra note 78 at 581. 107
In her thesis addressing the implications of Doré, Sarah RH Parker describes this as the Court permitting “a box-
ticking approach by decision-makers to the consideration of relevant Charter guarantees”: “Discretionary
Administrative Decisions and the Charter of Rights: Doré and Determining the “Proportionate” Balance (LL. M.
Thesis, University of British Columbia, Faculty of Graduate Studies and Postdoctoral Studies, 2013) at 144 online:
<https://circle.ubc.ca/bitstream/handle/2429/45625/ubc_2014_spring_parker_sarah.pdf?sequence=3> [Parker,
“Discretionary Administrative Decisions and the Charter”]. 108
Paul Daly, “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter
of Rights and Freedoms “ (2013) 60 Sup Ct L Rev (2d) 60 at 75 [Daly, “Prescribing Greater Protection”].
23
reasonableness review which, as Part IV explains, is one that strives to stand up, not strike down,
deficient reasoning. Added to the Court’s uncertain direction for achieving the proper “balance,”
the application of this approach to reasonableness review provides administrative decision-
makers with even greater room to avoid the strictures of s. 1 ordinary mandated under an Oakes.
(b) What is the standard of review?
Decision-makers left in a methodological lurch might turn to the Court’s discussion on, and
application of, the standard of review in order to reverse engineer further guidance. There,
unfortunately, they will find only additional confusion. Although the Court was clear in
directing administrative actors to aim for proportionality, it offered mixed messages about
evaluating whether that target has been hit.
Consider the Court’s discussion of the appropriate standard of review. The Court obviously
endorsed the application of the reasonableness standard to assess whether administrative
decisions violate the Charter.109
In addition to wanting the judiciary to avoid “retrying” cases
involving the implication of Charter rights,110
the Court repeatedly trumpeted the expertise that
administrative decision-makers offer in connection with their statutory mandates and in applying
the Charter to a given set of facts.111
Accordingly, the Court held, decision-makers should have
a “margin of appreciation” is assessing Charter claims112
and, likewise, their decisions should
109
This, of course, assumes that the reasonableness review would ordinarily apply. It is possible that, despite the
presumption of reasonableness review applying, the standard of review could be correctness. 110
Doré, supra note 1 at para. 51. 111
Ibid at para. 35-6, 46-48, 54 112
Ibid at para. 57.
24
stand so long as they fall “within a range of possible, acceptable outcomes.”113
This language of
deference suffuses the Court’s judgment.
Nevertheless, the Court also invokes a more invasive form review, at least insofar as the object
of reasonableness (i.e., proportionality) is concerned, suggesting that curial deference might be
contingent on decision-makers navigating important analytical turns. For example, the Court
provides that, in the Charter context, the reasonableness analysis centres on proportionality, a
concept it defines as “ensuring that the decision interferes with the relevant Charter guarantee no
more than is necessary given the statutory objective,”114
and asking “how the Charter value at
issue will best be protected in view of the statutory objectives”115
[emphasis added]. These
comments imply that decision-makers encroaching protected rights must satisfy a minimal
impairment requirement. This would make sense given the Court’s assertion that the Oakes test
and the reasonableness standard work “the same justificatory muscles.”116
(Then again, if
Doré’s methodological purpose was to jettison the Oakes test, perhaps not.117
) In the same vein,
the Court opined that, on judicial review, a determination on proportionality will be found to be
reasonable if the decision-maker “properly balanced” the interests at issue.118
Again, far from
suggesting that deference is the order of the day under Doré, this language implies that reviewing
courts might be free to reweigh the competing interests at stake in order to ensure that decision-
makers have in fact struck a proper balance.119
Indeed, as Professor Macklin observes, “it is
113
Ibid at para. 56. 114
Ibid at para. 7. 115
Ibid at para. 56. 116
Doré, supra note 1 at para 5. 117
Daly, “Prescribing Greater Protection”, supra note 108 at 85. 118
Doré, supra note 1 at para. 58. 119
Colleen M Flood & Jennifer Dolling, “An Introduction to Administrative Law: Some History and a Few
Signposts for a Twisted Path” in Colleen M Flood and Lorne Sossin, eds, Administrative Law in Context, 2d ed,
25
difficult to conceive of a proportionality analysis that does not inquire into the appropriate
weighting of the Charter right against other interests”120
[emphasis added]. Likewise, Evan Fox-
Decent and Alexander Pless observe that “[t]esting whether an appropriate balance has been
struck necessarily involves an inquiry into the weight accorded to countervailing considerations”
[emphasis added].121
Problematically, however, such an approach would be at odds with the
Court’s repeated instruction that judicial review courts should avoid this very type of
reweighing.122
Adding further confusion, Abella J.’s application of the standard exhibits no concern for either
proportionality or balancing. Turning to the facts, Abella J.’s engagement with the Disciplinary
Council’s decision is a “brief rehearsal,”123
one involving little more than a parade of Doré’s
intemperate language. After this cursory review, she reiterates the Council’s conclusion that the
“generally accepted norms of moderation and dignity were ‘overstepped.’”124
She then follows
this with her judgment’s last paragraph and her only assessment of the reasonableness
(i.e., proportionality) of the Council’s decision:
In the circumstances, the Disciplinary Council found that Mr. Doré’s letter
warranted a reprimand. In light of the excessive degree of vituperation in the
letter’s context and tone, this conclusion cannot be said to represent an
unreasonable balance of Mr. Doré’s expressive rights with the statutory
objectives.125
(Toronto: Emond Montgomery, 2013) 1 at 33 [Flood & Dolling, “An Introduction to Administrative Law”]; Mary
Liston, “Governments in Miniature”, supra note 10 at 80. 120
Audrey Macklin, “Standard of Review: Back to the Future?” in Colleen M Flood and Lorne Sossin, eds,
Administrative Law in Context, 2d ed, (Toronto: Emond Montgomery, 2013) 279 at 318 [Macklin, “Standard of
Review”]. 121
Fox-Decent & Pless, “The Charter and Administrative Law”, supra note 68 at 433. 122
Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42 at para. 30; Agraira v. Canada
(Public Safety and Emergency Preparedness), 2013 SCC 36 at para. 91 [Agraira]; Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12 at paras. 59, 64; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 at
para. 25. 123
Wildeman, “Pas de Deux”, supra note 51 at 377. 124
Doré, supra note 1 at para. 70. 125
Ibid at para. 71.
26
Perplexingly, Abella J. fails to take up the central inquiry of her own proposed framework, that
on judicial review “the question becomes whether…the decision reflects a proportionate
balancing of the Charter protections at play?”126
She leaves a number of questions answered.
For example, how did a reprimand, as opposed to, say, a warning, ensure that the Council’s
decision interfered with Doré’s freedom of expression “no more than is necessary,” key words
she used elsewhere to sell the approach?127
Why could a less intrusive disciplinary measure not
satisfy the Council’s concerns for professional civility? Why did the fact that the Doré’s letter
was sent privately not feature in the analysis?128
Despite Abella J.’s talk of balance and
proportionality, those supposedly controlling ideas are absent from her analysis.129
As a result,
her decision establishes a precedent that largely removes s. 1’s justificatory hurdle for
administrative decision-makers. To the extent it does, it again raises the obvious criticism that
Doré’s weakens the standard that Oakes ordinarily demands.
(c) The framework’s unworkable foundation
Doré’s dilution of the “rigorous Charter protection” otherwise afforded under the Oakes test is
even more problematic given its normative underpinning. Specifically, whether judicial review
courts employ Oakes (i.e., “correctness”) or Doré (i.e., “reasonableness”) now rests on the
unworkable distinction between “law” and “discretion.” As explained below, this distinction not
only threatens to confuse litigants and courts, but, for a number of reasons, creates an incentive
126
Ibid at para. 57. 127
Ibid at para s. 6, 7. 128
Daly, “Prescribing Greater Protection”, supra note 108 at 74. 129
Lewans, “Administrative Law, Judicial Deference, and the Charter”, supra note 25 at 16, argues that Abella J.’s
assessment of proportionality was errant in failing to examine whether Doré’s penalty was proportionate and,
instead ask whether there were reasonable, Charter compatible grounds, for punishing Doré. But that was the very
issue – he didn’t take issue with the length or the sentence, but rather the decision to reprimand.
27
for governments to ensure that Doré receives the broadest application possible by delegating all
Charter-engaging determinations to discretionary actors. All of these potential consequences
undermine the functions served by s. 1’s requirement that Charter-infringing conduct be
“prescribed by law.”
To repeat, the Charter’s guaranteed rights and freedoms are, pursuant to s.1, “subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society.” The phrase “prescribed by law” serves as an important threshold.
Government action that is not “prescribed by law” – that is, not anchored in statutory authority –
cannot be upheld. This threshold serves three important functions. It furthers the rule of law
(i.e., by ensuring that conduct infringing constitutional rights is statutorily authorized and cannot
be used arbitrarily), holds government accountable for its actions, and makes the infringement of
Charter rights more difficult to maintain.130
In Slaight, the Court first considered whether an exercise of discretion is a limit “prescribed by
law” and, if so, how to determine whether such decisions are Charter-complaint. The Court
recognized that discretionary decisions might implicate Charter rights in one of two ways:131
discretionary orders might be made pursuant to legislation which “confers, either expressly
or by necessary implication, the power to infringe a protected right.” In such cases, the
legislation, which alone satisfies the “prescribed by law” requirement, must be subject to an
Oakes test;
130
Daly, “Prescribing Greater Protection”, supra note 108 at 65-9. 131
Supra note 26 at 1079. This framework was developed by Lamer J., but expressly adopted by Dickson C.J.,
speaking for the majority.
28
alternatively, discretionary orders might be made pursuant to legislation that “confers an
imprecise discretion” to make the impugned order. In such cases, reviewing courts must
determine whether the decision-maker had the jurisdiction to make the order, which, if intra
vires and thus “prescribed by law,” must be subject to the Oakes test.
For the purposes of justifying a Charter violation, the source of the impugned infringement did not
matter. In either event, regardless of whether the infringement resulted from a “law” or an exercise
of “discretion,” governments were put to the same justificatory onus: courts were required to
employ a formal Oakes test to ensure constitutionality. This parity was important. As Charon J.
and the Court’s majority maintained in Multani,
With respect, it is of little importance to Gurbaj Singh — who wants to exercise
his freedom of religion — whether the absolute prohibition against wearing a
kirpan in his school derives from the actual wording of a normative rule or merely
from the application of such a rule. In either case, any limit on his freedom of
religion must meet the same requirements if it is to be found to be
constitutional. In my opinion, consistency in the law can be maintained only by
addressing the issue of justification under s. 1 regardless of whether what is in
issue is the wording of the statute itself or its application.132
Doré alters this “constitutional orthodoxy,”133
thereby undermining the purposes that the
“prescribed by law” requirement is meant to play. According to the Court, including three Justices
who signed onto Charon J.’s judgment in Multani, only a “law or rule of general application”
should continue to be justified under Oakes, while a discretionary decision should be reviewed
for proportionality.134
The Court drew this distinction on the basis that “an adjudicated
administrative decision is not like a law which can, theoretically, be objectively justified by the
state, making the traditional s. 1 analysis an awkward fit.” (This assertion, of course, ignores the
132
Multani, supra note 37 at para. 21. 133
Leckey, “Prescribed by Law”, supra note 34 at 575. 134
Doré, supra note 1 at para. 39.
29
fact that the Court has readily applied the Oakes test to administrative decisions on multiple
occasions,135
and that the Oakes test continues to apply to lower court discretionary orders.136
)
This distinction raises a number of concerns, arguably exacerbating the theoretical difficulties
already inherent in the Slaight approach.137
For the moment, I leave aside the Court’s suggestion
that both exercises of judicial review are essentially the same, a claim that I address in Part IV.
Rather, I make the following arguments.
First, while superficially intuitive, the distinction between “law” and “discretion” is notoriously
difficult to draw.138
In fact, as the Court’s own jurisprudence has illustrated, the distinction has
“frequently proved impossible to make,”139
a result of the fact that, much like the superficially neat
divide between “legislatures that legislate” and “executives that execute,” the distinction between
law and discretion obscures a middle ground in which both “necessarily exist in combination.”140
Indeed, although Slaight was decided at a time when administrative law distinguished between
decisions involving “law” and “discretion,” that practice was abandoned in Baker, in which the
Court recognized that there was no clear-cut distinction between the two.141
This distinction, and
more precisely the stakes it creates – correctness vs. reasonableness review – will undoubtedly
135
Supra note 27. 136
See, for example, Alberta v AUPE, 2014 ABCA 197 (concerning an injunction issued by Alta. Q.B.). 137
See, generally, Daly, “Prescribing Greater Protection”, supra note 108 for a full treatment. 138
As LeBel noted in Multani, supra note 37 at para. 151, “this dualism underestimates the problems that arise in
applying the classifications it invites.” 139
See, generally, Susan Gratton, “Standing at the Divide: the Relationship between Administrative Law and the
Charter post-Multani” (2008) 53 McGill LJ 477 [Gratton, “Standing at the Divide”] for a history of the Court’s
treatment of the law/discretion spectrum. See also, generally, Geneviève Cartier, “Administrative Discretion:
Between Exercising Power and Conducting Dialogue” in Colleen M Flood and Lorne Sossin, eds, Administrative
Law in Context, 2d ed, (Toronto: Emond Montgomery, 2013) 381. 140
See Gratton, “Standing at the Divide”, ibid at 495. In a nutshell, Gratton identifies the problems as follows:
“Where Charter limits occur through government action lying in the middle ground of the law/discretion spectrum,
courts are unable to agree on the point at which law ends and discretion begins – the point at which they must set
aside their legal tools of statutory interpretation and vagueness in deference to the administrator’s own interpretation
of his or her authority. The elegant distinction between law and discretion, on which the Slaight framework depends,
falls apart in practice since it fails to account for cases involving weak discretion.” 141
Cartier, “Administrative Law: Twenty Years After the Charter”, supra note 65 at 209, 224.
30
encourage parties to dispute the nature of the authority responsible for Charter infringements.142
Constitutional litigation will thus be even more complex – e.g., parties will have to be prepared to
argue their cases through both the Oakes and administrative law frameworks – and, consequently,
more expensive. This will give Charter claimants greater pause in considering whether to vindicate
their rights. In having this effect, Doré undermines the “prescribed by law” requirement’s attempt
to hold government accountable for its actions, and makes the infringement of Charter rights
more difficult to maintain.
Second, this same unworkable distinction shifts the evidentiary burden. Under the Oakes test,
proof of an infringed Charter right shifts the evidentiary onus onto the government actor, which
must then justify its conduct. Under an administrative law approach, however, government
actors have no such obligation, strictly speaking. Instead, the applicant is responsible for
proving the unreasonableness of the impugned decision as a whole (i.e., the breach of a Charter
right and the lack of the breach’s justification), a usually onerous threshold to meet. Thus, post-
Doré, government actors are now largely relieved of their responsibility to justify potentially
unconstitutional activity.143
Again, this undermines the role that the “prescribed by law”
requirement is meant to play in both holding government accountable for its actions and making
the infringement of Charter rights more difficult to maintain.
Third, the distinction between “law” and “discretion” encourages “government by discretion.”
Today, statutes are commonly skeletal, leaving much of government’s work to the exercise of
142
Fox-Decent & Pless, “The Charter and Administrative Law”, supra note 67 at 428. 143
Ibid. at 435.
31
discretion.144
As a result, Charter violations are more likely to arise as a result of discretionary
administrative action than by appearing explicitly in legislation.145
Doré further incentivizes this
trend. After all, why would governments fearing judicial scrutiny pass legislative
pronouncements implicating Charter rights (i.e., set up targets for correctness review under
Oakes) when they can establish discretionary decision-makers to do their bidding for them
(i.e., set up targets for reasonableness review)? Doré makes the decision easy. Self-interested
governments will now be strongly motivated to forgo legislating clear pronouncements that
affect Charter rights and, instead, delegate even greater authority to administrative actors to
make Charter-implicating determinations. This will only exacerbate criticisms that the use of
discretionary decision-making to implicate Charter rights subverts the rule of law concerns over
predictability and certainty imbedded in s. 1.
Lastly, the Doré framework – one based on administrative law – leaves those who have suffered
a violation of their Charter rights unable to claim Charter remedies.146
One can conceive of a
number of situations in which this fact might either play a determinative role in deciding whether
to litigate or, perhaps, provide the government with a decisive advantage. For example,
government conduct might spur a class-action based on the infringement of Charter rights.147
However, forced to mount their claim through Doré, the remedial rug would be pulled from
beneath the class’ feet if, for instance, the class’ aim is to claim damages, something unavailable
144
Macklin, “Standard of Review”, supra note 120 at 318. 145
Gratton & Sossin, “In Search of Coherence,” supra note 2 at 146. 146
Fox-Decent & Pless, “The Charter and Administrative Law”, supra note 67 at 435. 147
For example, a recent action was commenced targeting the Communications Security Establishment Canada’s
electronic spying on Canadians, an alleged breach of the Charter. See “Class action lawsuit targets Canada’s spy
agency”, The Toronto Star (1 April 2014) online: The Toronto Star
<http://www.thestar.com/news/canada/2014/04/01/classaction_lawsuit_targets_canadas_spy_agency.html>.
32
on judicial review. This consequence undermines, if not completely eviscerates s. 1’s
accountability function.
(d) Institutional concerns
Doré also raises a number of institutional concerns. My focus here is not the wording of s. 1 per
se, but, more fundamentally, with the legitimacy of the exercise it entails. In light of Doré’s
instruction to reviewing courts to defer to administrative decision-makers implicating Charter
rights, it is worth taking a closer look at the identity of these decision-makers, along with the
institutional setting within which they operate. This section illustrates why according deference
to these decision-makers is, in addition to the other arguments I raise, yet another nail in the
coffin for the primacy of Charter rights.
Canada’s administrative state spans an array of substantive areas. It is because of this breadth
that many more Canadians have their rights determined by administrative tribunals than they do
by courts.148
In fact, the administrative justice system is the only part of Canada’s justice system
that the majority of Canadians will ever experience.149
For the most part, therefore, it is
Canada’s administrative justice system, not its courts, that must ensure the Charter’s
effectiveness.150
As Lorne Sossin and Michael Friedman write,
[i]f the Charter is to be Canada’s supreme law, it must have relevance for those
who are most vulnerable to the adverse effects of government action. In other
148
R. v. Conway, 2010 SCC 22 at para. 77 [Conway], citing Cooper v. Canada (Human Rights Commission), [1996]
3 SCR 854 per McLachlin J., in dissent. See also Quebec (Attorney General) v. Quebec (Human Rights Tribunal),
2004 SCC 40 at para. 28; Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers'
Compensation Board) v. Laseur, 2003 SCC 54 149
That the administrative justice system is part of Canada’s justice system was made clear in Paul v. British
Columbia (Forest Appeals Commission), 2003 SCC 55 at para. 22 per Bastarache J., speaking for the Court. 150
Sossin & Friedman, “Charter Values”, supra note 68 at 2.
33
words, if the Charter is to matter, it must matter in the realm of administrative
justice.151
Doré creates a concern insofar as those entrusted with the Charter’s guarantees in the
administrative justice system are doctrinally assumed to not only be experts in their respective
fields, but in applying the Charter in their respective fields. The Supreme Court has repeatedly
deemed it appropriate to defer to the exercise of legislatively entrusted power. (In fact, as Part V
explains, the Court now regards its relationship with Canada’s administrative justice system as
part of a “wider constitutional project” of public justification,152
one within which the Court is
willing to permit the administrative stare a growing role in making law.) For example, the Court
has observed that “[w]hen considering a decision of an administrative tribunal interpreting or
applying its home statute, it should be presumed that the appropriate standard of review is
reasonableness.”153
Likewise, the Court has affirmed that, “[b]y setting up a specialized tribunal
to determine certain issues, the legislature is presumed to have recognized superior expertise in
that body in respect of issues arising under its home statute or a closely related statute,
warranting judicial review for reasonableness.”154
Contrary to Doré’s suggestion otherwise, this presumption does translate perfectly into the
language of Charter adjudication. Despite having a particular field sensitivity, many
administrative actors do not have the legal training or institutional capacity necessary to resolve
Charter disputes. Many are non-lawyers, are not familiar with Charter jurisprudence, and may
151
Sossin & Friedman, “Charter Values”, supra note 68 at 1. 152
Wildeman, “Pas de Deux”, supra note 51 at 325. 153
Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 39
[Alberta Teachers’]. 154
Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 at
para. 11.
34
not have the support necessary to adjudicate Charter rights effectively. Ron Ellis, the inaugural
Chair and CEO of Ontario’s Workers’ Compensation Appeals Tribunal, and someone with over
30 years of experience in the administrative justice system, is more frank. From his view in the
trenches, he describes the system’s competence as “rarely, and only providently, optimal, and
often marginal”155
In short, many administrative decision-makers are simply not capable of
discharging the constitutional burden which, under Doré, they are assumed to easily shoulder.
There is simply no basis for the Court’s suggestion that the general field expertise wielded by
administrative decision-makers equips all of them to resolve all Charter disputes effectively.156
Moreover, many decision-makers in Canada’s administrative state function in an environment in
which they do not have a guarantee of adjudicative independence. Generally speaking,
administrative decision-makers are considered independent when operating with the benefit of
the “Valente criteria”: security of tenure, financial security, and administrative independence.157
However, the Supreme Court has made clear that a tribunal’s relationship to the executive is a
matter for the legislative branch158
and, thus, that the Valente criteria are subject to statutory
tailoring or, in many cases, complete omission. Despite multiple requests to enshrine the
principle of adjudicative independence for administrative tribunals as a constitutional guarantee,
155
Ron Ellis, Unjust by Design (Vancouver: UBC Press, 2013) at 113 [Ellis, Unjust by Design]. 156
Macklin, “Charter Right or Charter-Lite”, supra note 78 at 576. 157
Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 SCR 3; 2747-3174 Québec Inc. v. Quebec (Régie des
permis d’alcool), [1996] 3 SCR 919. For a complete treatment of the law of adjudicative independence, see Laverne
Jacobs, “Caught Between Judicial Paradigms and the Administrative State’s Pastiche: ‘Tribunal Independence,
Impartiality, and Bias” in in Colleen M Flood and Lorne Sossin, eds, Administrative Law in Context, 2d ed,
(Toronto: Emond Montgomery, 2013) 233. 158
Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control & Licensing Branch), 2001 SCC
52 at para. 20.
35
the Court has refused.159
This means that the degree of independence enjoyed by administrative
decision-makers is entirely dependent on the legislature, a highly suspect state of play when one
considers that the executive branch has as its disposal a number of tactics to ensure the
“responsiveness” of those adjudicating Charter rights.160
Chief among these is the “at pleasure”
appointment, which effectively allows the executive to dismiss its appointees at will.161
But
there are many others: the endemic use of patronage appointments to ensure that the adjudicative
deck is stacked in the government’s favour,162
seconding watchful or imposing executive branch
staff to tribunal positions,163
refusing to reappoint “problematic” adjudicators,164
integrating
judicial tribunals into their host ministries,165
and outright abolishing “wayward” tribunals.166
All have persisted notwithstanding over 40 official studies recommending change.167
As a result,
one is left to confront a “Potemkin village system of apparently independent but in fact
dependent judicial tribunals,”168
which Ellis sums up as follows:
In the executive branch’s design and administration of its judicial rights-
determining bodies, one finds, behind the façade of independence and the rhetoric
of independent decision-making, a set of pervasive structural strategies and
administrative tactics designed to optimize and protect the execute branch’s
interests and the to serve its needs for predictability and control – strategies and
tactics that subvert the administration of justice system’s rule-of-law needs and its
public promise of justice.169
159
Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36; Ell v. Alberta, 2003 SCC 35;
McKenzie v. British Columbia (Minister of Public Safety and Solicitor General), 2007 BCCA 507, leave ref’d;
Saskatchewan Federation of Labour v. Government of Saskatchewan, 2013 SKCA 61, leave ref’d. See also 160
See, generally, Ellis, Unjust by Design, supra note 155. See also Ron Ellis and Mark E. McKenzie, “Ocean Port
or the Rule of Law? The Saskatchewan Labour Relations Board”, 2009 CJALP 267. 161
See, for example, Keen v. Canada (Attorney General), 2009 FC 353. 162
Ellis, Unjust by Design, supra note 155 at 37 et seq. 163
Ibid at 75 et seq. 164
Ibid at 86 et seq. 165
Ibid at 99 et seq. 166
Ibid at 93 et seq. See also Lorne Sossin, “The Puzzle of Independence for Administrative Bodies”, (2008) 26
NJCL 1. 167
Ibid at 128. 168
Ibid at 36. 169
Ibid at 37.
36
If indeed it is essential to the administration of justice that justice is not only done but also seen
to be done,170
then we must seriously question why claimants before adjudicative tribunals
should enjoy fewer protections of decision-making impartiality and independence than those
pleading before courts,171
especially when Charter rights are at stake.
Ultimately, this institutional reality frustrates the Court’s purpose in granting administrative
decision-makers increasing Charter jurisdiction over the law two decades. The Court has
repeatedly asserted that “the Charter belongs to the people.”172
No less dramatically, it has
emphasized the need for “direct and early access to Charter remedies in forums competent to
issue such relief.”173
The institutional concerns raised above, however, cast a dubious pall over
the exercise with which administrative decision-makers are, under Doré, now entrusted and, with
it, the Court’s commitment to these grand ideals.
IV. The justification juxtaposition: proportionality v. reasonableness
This section re-examines Doré’s distinction between “law” and “discretion,” and, more
specifically, its consequent dichotomy of rights review: “laws” infringing Charter rights will
continue to be reviewed under Oakes (i.e., for correctness), while “discretionary” decisions doing
the same are now reviewed for proportionality (i.e., for reasonableness). Here, I respond to
170
Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 at para. 52. 171
Lorne Sossin, “The Uneasy Relationship between Independence and Appointments in Canadian Administrative
Law” in Grant Huscroft and Michael Taggart, eds, Inside and outside Canadian administrative law: Essays in
Honour of David Mullan (Toronto: University of Toronto Press, 2006) 50 at 52. Dean Sossin notes that many of
these same tribunals have jurisdiction that once belonged to courts, making the state of affairs even more suspect. 172
See, most recently, R. v. Conway, 2010 SCC 22 at para. 77, citing Cooper v. Canada (Human Rights
Commission), [1996] 3 SCR 854 at para. 70 per McLachlin J., in dissent. 173
See, most recently, R. v. Conway, 2010 SCC 22 at para. 35, citing R. v. 974649 Ontario Inc., 2001 SCC 81 at
para. 75.
37
Abella J.’s suggestion that, despite this asymmetry, both frameworks share “conceptual
harmony” ensuring “rigorous Charter protection.” This section will illustrate why this disparity
compromises s. 1’s requirement that limits on Charter rights be “reasonable” and “demonstrably
justified.” For the purposes of this section, I assume that this requirement is based on a standard
at least as stringent as the Oakes test, such that any derogation from Oakes’ stringency is an
impermissible compromise. As I illustrate, the Doré framework suffers from this infirmity.
(a) The argument: the difference in deference
Doré’s central teaching is its integration of proportionality analysis into the administrative law
doctrine of reasonableness review. In this regard, Doré marks the Court’s adoption of the unity
of public law thesis under which both administrative law and the Charter share in the protection
of fundamental rights by assessing the legality of public decision-making using a substantive,
values-based approach. Despite the significance of this development, Abella J. offers little
supporting analysis. For the most part, she rests her decision on the aspirational observation that
while a formulaic application of the Oakes test may not be workable in the context of adjudicated
decisions, it can be distilled to flex “the same justificatory muscles” within the context of
reasonableness review. That may be true. However, Abella J. then goes too far, equating
reasonableness review and the Oakes test on the basis that they both entail according deference
to government actors.
In making this argument, she draws on the similar language in the jurisprudence applying
reasonableness review and s. 1 concerning the margin of manoeuvre to which government actors
are entitled when implicating Charter rights. Consider the key portions of Abella J.’s judgment,
38
which follows her instruction to administrative decision-makers to first consider the statutory
objectives at issue:
Then the decision-maker should ask how the Charter value at issue will best be
protected in view of the statutory objectives. This is at the core of the
proportionality exercise, and requires the decision-maker to balance the severity
of the interference of the Charter protection with the statutory objectives. This
is where the role of judicial review for reasonableness aligns with the one applied
in the Oakes context. As this Court recognized in RJR-MacDonald Inc. v.
Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160, “courts must
accord some leeway to the legislator” in the Charter balancing exercise, and the
proportionality test will be satisfied if the measure “falls within a range of
reasonable alternatives”. The same is true in the context of a review of an
administrative decision for reasonableness, where decision-makers are entitled to
a measure of deference so long as the decision, in the words of Dunsmuir, “falls
within a range of possible, acceptable outcomes”…
On judicial review, the question becomes whether, in assessing the impact of the
relevant Charter protection and given the nature of the decision and the statutory
and factual contexts, the decision reflects a proportionate balancing of the
Charter protections at play. As LeBel J. noted in Multani, when a court is faced
with reviewing an administrative decision that implicates Charter rights, “[t]he
issue becomes one of proportionality”…and calls for integrating the spirit of s. 1
into judicial review. Though this judicial review is conducted within the
administrative framework, there is nonetheless conceptual harmony between a
reasonableness review and the Oakes framework, since both contemplate giving a
“margin of appreciation”, or deference, to administrative and legislative bodies in
balancing Charter values against broader objectives.174
For Abella J., no further comparison between reasonableness review and s. 1 is necessary. The
two are, for her, equal.
As argued above, the claim that the Oakes and Doré frameworks are functionally equivalent is
doubtful. Nevertheless, assuming for the moment that they indeed share the same basic focus on
proportionality, the Oakes and Doré frameworks remain distinct in one crucial respect: the
divergent roles that deference plays within each. Under Oakes, courts will assess proportionality
174
Doré, supra note 1 at paras. 56-7.
39
on a standard of correctness – that is, unless deference is required, which it is in only limited
circumstances, courts may freely impose their own views on the “proper balance” to be struck.
Under Doré, however, the approach is, at least according to the letter of the Court’s gospel, less
invasive. Courts will assess proportionality on a standard of reasonableness – that is, courts
cannot, in the absence of some reviewable error, impose their own views on the “proper
balance.” Put another way, whereas correctness review invites judicial interventionism that,
generally speaking, might but need not allow government justification to stand, reasonableness
review necessarily demands judicial respect that, generally speaking, must give government
actors the final word.175
It is through this gap between the two approaches that Charter rights
threaten to fall.
To be clear, I do not advocate, let alone join the debate over, a bifurcated public law.176
(I do,
however, embrace a unity of public law thesis on the simple basis that there is no distinction
between “the normative or values-based foundations of legality animating judicial review under
the Charter and the normative or values-based foundations of legality animating judicial review
in administrative law.”177
) Nor do I take issue with the underlying application of proportionality
175
David Mullan appears to make the same argument in commenting on Abella J.’s claim of “conceptual harmony”
between the Oakes and Doré frameworks as follows: “even when translated to the world of judicial review of
administrative action, that limited concession to a margin of appreciation in the context of a justification of a prima
facie violation of a protected right or freedom seems far removed from the respect for agency choice found in the
normal application for an unreasonableness standard of review. See Mullan, “Unresolved Issues”, supra note * at
53. 176
See, for example, David Mullan, “A Proportionate Response to an Emerging Crisis in Canadian Judicial Review
Law?” (2010) NZL Rev 233; Murray Hunt, “Against Bifurcation” in David Dyzenhaus, Murray Hunt & Grant
Huscroft, eds, A Simple Common Lawyer: Essays in Honour of Michal Taggart (Oxford: Hart Publishing, 2009) 99;
Michael Taggart, “Proportionality, Deference, Wednesbury” [2008] NZL Rev 423; Evan Fox-Decent, “The Internal
Morality of Administration” in David Dyzenhaus, ed, The Unity of Public Law (Portland, Oregon: Hart Publishing,
2004) 143; Cartier, “The Baker Effect”, supra note 30; Guy Régimbault, “Correctness, Reasonableness and
Proportionality: A New Standard of Judicial Review” (2005) 31 Man LJ 239. 177
Sheila M. Wildman, “Romancing Reasonableness: An aspirational account of the Canadian case law on judicial
review of substantive administrative decisions since CUPE v. N.B. Liquor Corporation” (LL.M. Thesis, University
of Toronto, Graduate Department of Law, 2011) at 159-60 online:
40
in the administrative sphere. Administrative actors can, at least in theory, apply the concept of
proportionality in a manner affording Charter protection commensurate with the Oakes test.
Rather, my argument rests on how reasonableness review functions.
Based on the Court’s current approach, reasonableness review generally requires courts to
cooper up deficient reasoning, an approach inherently designed to find reasons where none exist.
More troublingly, it often serves as a proxy for a free-floating form of deference under which
courts refuse to critically engage the reasons under review. This raises a serious concern given
that proportionality necessarily entails normative judgment about the relative weight and
prioritization of competing values.178
If in the post-Doré era the constitutionality of
administrative decision-making is to rest on the concept of proportionality, reviewing courts
must be required to employ reasonableness review to demand justification that in fact exhibits
this central criterion. To the extent that it does not, either because it strives to validate or, worse,
refuses to engage deficient reasoning, then reasonableness review offers little or no check on the
administrative decisions implicating Charter rights.
As explained below, I attribute these aspects of reasonableness review to the current institutional
setting of judicial review, along with reasonableness review’s unstructured nature and ultimate
aim, “deference as respect.” Consider first the institutional setting within which the exercise of
modern judicial review occurs.
<https://tspace.library.utoronto.ca/bitstream/1807/29644/7/Wildeman_Sheila_M_201106_LLM_thesis.pdf>
[Wildeman, “Romancing Reasonableness”]. 178
Ibid at 182.
41
(b) The institutional setting of modern judicial review
Canada’s judiciary has long struggled to define its understanding of, and relationship with, the
administrate state. For decades, judicial review operated in thrall to Dicey’s formal conception
of the separation of powers.179
Under this spell, courts eyed administrative actors suspiciously,
cabining them into the narrow role of simply implementing, as opposed to interpreting, the
law.180
Thus, administrative decisions implicating so-called “judicial” or “jurisdictional”
functions – terms which courts eagerly overused – were viewed as threatening the Canadian
constitutional order and, accordingly, were given no curial deference.181
This changed with the Supreme Court’s seminal judgement in the development of the modern
law of judicial review, Dickson J.’s decision in Canadian Union of Public Employees, Local 963
v. New Brunswick Liquor Corporation.182
Marking the acceptance of the legitimacy of the
administrative state,183
CUPE relinquished the judiciary’s monopoly over statutory interpretation
and conceded that, in some circumstances, the search for legislative meaning is best left to
administrative decision-makers.184
In doing so, the Court signalled its departure from
constitutional formalism towards a collaborative conception of the separation of powers in which
179
See supra note 35. 180
Matthew Lewans, “Deference and Reasonableness Since Dunsmuir” (2012) 38 Queen’s LJ 59 at 64 [Lewans,
“Deference and Reasonableness”]. 181
Ibid at 65. See also Lewans, “Administrative Law, Judicial Deference, and the Charter”, supra note 25 at 2,
citing David Dyzenhaus, “Formalism’s Hollow Victory” (2002) 4 NZL Rev 525. 182
[1979] 2 SCR 227. 183
Dyzenhaus & Fox-Decent, “Rethinking the Process/Substance Distinction”, supra note 35 at 200; The
Honourable Justice Louis LeBel, “Some Properly Deferential Thoughts on Deference” (2008) 21 CJALP 1 at 2
[LeBel, “Thoughts on Deference”]. 184
Suzanne Comtois, “From Deference to Governance”, supra note 10 at 27.
42
Canada’s judiciary and administrative state are seen as “genuine partners” in maintaining the rule
of law.185
Since then, the Court has continued to intone, though not always faithfully,186
CUPE’s
enunciation of curial deference to administrative decision-makers. The rubric for this declaration
is what is now known as the “standard of review analysis.”187
In essence, this analysis is the
fulcrum on which the Court balances its competing rule of law imperatives to ensure substantive
legality and respect democratic constitutionalism.188
Based on its current formulation in
Dunsmuir v. New Brunswick,189
the Court’s “standard of review analysis” has not fully shed its
formalism.190
Still, it undeniably placed greater law-making power in the hands of
administrative actors.191
185
Lewans, “Deference and Reasonableness”, supra note 79 at 65. See also Lewans, “Administrative Law, Judicial
Deference, and the Charter”, supra note 25 at 3. Comtois, “From Deference to Governance”, supra note 10 at 32-
33. 186
See, generally, Paul Daly, “The Struggle for Deference in Canada” in Mark Elliott and Hanna Wilberg, eds, The
Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford: Hart Publishing, 2015)
(forthcoming). 187
U.E.S., Local 298 v. Bibeault, [1988] 2 SCR 1048; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2
SCR 557; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748; Pushpanathan v.
Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982; Dr. Q. v. College of Physicians and
Surgeons of British Columbia, 2003 SCC 19; Law Society of New Brunswick v. Ryan, 2003 SCC 20; Dunsmuir v.
New Brunswick, 2008 SCC 9. 188
Comtois, “From Deference to Governance”, supra note 10 at 26. 189
2008 SCC 9 [Dunsmuir]. 190
See, for example, Andrew Green, “Can There Be Too Much Context in Administrative Law? Setting the
Standard of Review in Canadian Administrative Law” (2014) UBC L Rev 443; Mullan, “Unresolved Issues”, supra
note 67; Lewans, “Administrative Law, Judicial Deference, and the Charter”, supra note 25 at 4; Paul Daly,
Dunsmuir’s Flaws Exposed: Recent Decisions on Standard of Review” (2012) 58 McGill LJ 483; Paul Daly, “The
Unfortunate Triumph of Form over Substance in Canadian Administrative Law” (2012) 50 Osgoode Hall LJ 317;
Diana Ginn, “New Words for Old Problems: The Dunsmuir Era” (2010) 37 Advocates’ Q 317; Alice Woolley and
Shaun Fluker, “What has Dunsmuir Taught?” (2009-2010) 47 Alta L Rev 1017 at 1019. 191
Dunsmuir, supra note 188 at para. 30, citing The Honourable Thomas A. Cromwell “Appellate Review: Policy
and Pragmatism” in 2006 Pitblado Lectures, Appellate Courts: Policy, Law and Practice. Winnipeg: Fort Garry,
2006, V-1: “legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by
acknowledging that the courts do not have a monopoly on deciding all questions of law.”
43
This is evident in Dusmuir’s simplification of substantive review. Principally, this simplification
took the form of the Court’s reducing the standards of review applicable to administrative actors
to two – correctness and reasonableness – and consolidating decades of its jurisprudence by
establishing categories of decisions to which either standard should apply.192
Post-Dunsmuir,
correctness review has emerged as clearly “exceptional,”193
applying in few instances:
(a) “constitutional questions” (which, given Doré, must now exclude questions involving
discretionary administrative decisions applying the Charter to a set of facts); (b) questions of law
that are of “central importance to the legal system as a whole and that are outside the
adjudicator’s expertise”; (c) questions regarding the jurisdictional lines between two or more
competing specialized tribunals; (d) true questions of jurisdiction or vires; and (e) cases in which
an administrative decision-maker and court may have to consider the same legal question at first
instance.194
In multiple cases following Dunsmuir, the Court could have easily slotted the issue
on appeal into a correctness category but refused to do so.195
The Court has also gone on to
doubt the existence of “true questions of jurisdiction,”196
rarifying the application of correctness
review even further.
Instead, the Court has continued to expand the application of reasonableness review and its
concomitant requirement of curial deference. Introduced in Dunsmuir, there is now a
192
Paul Daly, “Canada’s Bi-Polar Administrative Law: Time for Fusion” (2014) 39 Queens’ LJ (forthcoming). 193
McLean v. British Columbia (Securities Commission), 2013 SCC 67 at para. 25, per Moldaver J., speaking for a
majority [McLean]. 194
Alberta Teachers', supra note 152 at para. 33; Smith v. Alliance Pipeline, [2011] SCC 7 at para. 26 [Alliance
Pipeline]; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012
SCC 35 at para. 15. 195
The prime examples include Alberta Teachers’, ibid; Canada (Canadian Human Rights Commission) v. Canada
(Attorney General), 2011 SCC 53 [Mowat]; Nor-Man Regional Health Authority Inc. v. Manitoba Association of
Health Care Professionals, 2011 SCC 59; and Doré. See Lewans, “Deference and Reasonableness”, supra note 79
at 81. 196
Alberta Teachers', supra note 152 at para. 34.
44
presumption that administrative decisions-makers are entitled to deference when engaged in the
large majority of their work. This presumption applies when the question at issue (a) relates to
the interpretation of the tribunal’s enabling statute or statutes closely connected to its function
with which it has particular familiarity; (b) raises issues of fact, discretion or policy; or
(c) involves issues or missed fact and law.197
This breadth illustrates that modern judicial review
does not simply incorporate, but is animated by, the concept of deference.198
As the Court
described this turn in Doré,
judicial review should be guided by a policy of deference, justified on the basis of
legislative intent, respect for the specialized expertise of administrative decision-
makers, and recognition that courts do not have a monopoly on adjudication in the
administrative state.199
This policy of deference undergirds what Sheila Wildeman labels the “romantic account” of
judicial review. On this account, the Court’s jurisprudence on substantive review, beginning
with CUPE, is modelled on “a wider constitutional project shared among the legislative, judicial,
and executive/administrative branches,” one of “public justification – that is, of ensuring that
state action is grounded in, and so may be publically justified in light of, law.200
Abella J. echoes
this point in drawing the following parallel between CUPE/Dunsmuir and the line of cases
recently culminating in R. v. Conway, in which the Court considered the circumstances under
which tribunals can grant Charter remedies:
The administrative law approach also recognizes the legitimacy that this Court
has given to administrative decision-making in cases such as Dunsmuir and
Conway. These cases emphasize that administrative bodies are empowered, and
indeed required, to consider Charter values within their scope of
197
Alliance Pipeline, supra note 192 at para. 26. 198
The Honourable Joseph T. Robertson, “Judicial Deference to Administrative Tribunals: A Guide to 60 Years of
Supreme Court Jurisprudence” (2014) 66 Sup Ct L Rev 1. 199
Doré, supra note 1 at para. 30. 200
Wildeman, “Pas de Deux”, supra note 51 at 325; and, generally, “Romancing Reasonableness”, supra note 176.
See also Dyzenhaus, “Constituting the Rule of Law”, supra note 9 at 487-489; LeBel, “Thoughts on Deference”,
supra note 183 at 16, 20-1.
45
expertise. Integrating Charter values into the administrative approach, and
recognizing the expertise of these decision-makers, opens “an institutional
dialogue about the appropriate use and control of discretion, rather than the
older command-and-control relationship”201
[emphasis added].
Doré, of course, extends this policy of deference to administrative actors in their relationship
with the Charter. Although the basis upon which Abella J. did so was mistaken, this mistake
reveals the extent to which the concept of deference presently informs the relationship between
the judiciary and the administrative state.
Abella J. justified extending administrative decision-makers deference on constitutional issues
on the basis there is now a “completely revised relationship between the Charter, the courts, and
administrative law than the one first encountered in Slaight.” Here, Abella J. refers to the
Court’s recognition of the “distinct advantage that administrative bodies have in applying the
Charter to a specific set of facts and in the context of their enabling legislation.”202
This
emphasis on agency expertise formed a considerable part of the basis of the Court’s decision in
Conway, in which the Court developed a new approach for determining when administrative
actors can grant remedies under s. 24 of the Charter. That test is irrelevant. The real point is
that the Court based its conclusion in Conway on, among other things, over two decades of
jurisprudence confirming that “expert tribunals should play a primary role in the determination
of Charter issues falling within their specialized jurisdiction.”203
The problem with Abella J.’s
reliance on Conway in Doré, however, is glaring: Conway may have affirmed a broader grant of
Charter jurisdiction to the administrative state, but, at the same time, it preserved the judiciary’s
ability to review the exercise of this jurisdiction on a standard of correctness. That is to say,
201
Doré, supra note 1 at para. 35. 202
Ibid at paras. 47-48. 203
Ibid at para. 21.
46
Conway undoubtedly recognized the value of administrative field sensitivity in the context of
Charter adjudication, but never suggested that this expertise should engender curial deference.
For this reason, Doré represents a radical departure from the Court’s previous jurisprudence, and
not simply for ignoring this distinction. The significance runs deeper. The policy of deference
informing CUPE, Dunsmuir, and modern substantive review emerged as a means of reconciling
Parliament’s intent to immunize certain administrative decisions from review with the courts’
supervisory role to maintain the rule of law.204
The approach’s goal was to centre the concept of
deference on legislative intent by, in essence, asking “whether the legislator intended the
tribunal’s decision on these matters to be binding on the parties to the dispute,” or “which body
did Parliament intend to be best-situated to answer the question conclusively — the court or the
tribunal?”205
Although important, expertise was never the sole criterion for deference. It was
always one of several factors used in the judicial fiction of construing legislative intent to solve
the appropriate standard of review. Doré unhinges the importance of administrative expertise
from this interpretive exercise. The Court now appears to suggest that this expertise alone, or
perhaps married to a requirement for reasons demonstrating proportionality, provides the
necessary basis for deference.
As a result, Doré moves the Court closer to a model of judicial review based on the “principle of
legality” and a culture of justification. Under this model, courts approach judicial review by
focusing solely on whether the reasons given by the decision-maker are capable of justifying the
decision, with judges deferring to the extent that such justification meets the applicable standard
204
Canada (Citizenship and Immigration) v. Khosa, [2009] 1 SCR 339, 2009 SCC 12 at para. 82. 205
Smith v. Alliance Pipeline Ltd., [2011] 1 SCR 160, 2011 SCC 7 at para. 96.
47
of review.206
This development is positive insofar as it abandons Dunsmuir’s “plain fact
conception” of the rule of law – principally its polestar of legislative intent – and reengineers the
concept of legality on the relationship between an administrative official’s reasoning and
conclusion.207
This explanation would have been a better normative basis for the Court’s
decision. As is stands, however, Abella J.’s reliance on the expertise of administrative decision-
makers leaves her emphasis on Conway misplaced. If the Court has now broken tradition by
grounding Charter adjudication in culture of justification, Conway does not help rationalize this
development.
Nevertheless, Abella J.’s misuse of Conway illustrates my point about the extent to which the
concept of deference currently informs the relationship between the judiciary and the
administrative state. As this section has attempted to illustrate, the institutional setting of
modern judicial review is one informed by a retreat from judicial imperialism. The pendulum is
now swinging in the other direction – generally speaking, at least – towards a cooperative
institutional enterprise. (As explained below, the Court is still prone to occasional fits of
asserting judicial hierarchy.) Given the nature of its departure from the Court’s previous
jurisprudence, Doré adds further momentum in the judiciary’s transit to deference. The point, at
the risk of sounding trite, is precisely Doré’s ratio: the standard of review need not be adjusted
simply because Charter rights are at issue – the judiciary should defer to administrative actors on
those determinations as well.
206
David Dyzenhaus, Murray Hunt & Michael Taggart, “The Principle of Legality in Administrative Law:
Internationalisation as Constitutionalisation” (2001) 1 OUCLJ 5 at 6. See also, Dyzenhaus, “The Politics of
Deference”, supra note 9 at 302-307; Dyzenhaus, “Dignity in Administrative Law,” supra note 67 at 110-1; “Law as
Justification,” supra note 67. 207
Dyzenhaus, “Dignity in Administrative Law,” supra note 67 at 106-9.
48
(c) The nature of reasonableness review
How, then, does reasonableness actually play out within this institutional setting? What guides
courts’ determinations of what is reasonable, and what might this guidance bring to bear on
courts’ assessment of proportionality in administrative decision-making?
While the standard of reasonableness is at the heart of modern judicial review, it is “one of the
most widely used and yet most complex legal concepts.”208
Despite the Court’s overhaul of the
framework for judicial review in Dunsmuir, there is still no judicial consensus on when an
administrative decision is reasonable.209
More to the point, the Court has provided “little
concrete guidance” on what reasonableness review entails and, in several cases, has only
increased the uncertainty about its meaning.210
Courts typically engage in the same ritualistic incantation before engaging in reasonableness
review. Setting the table, they almost invariably echo Dunsmuir’s hollow pronouncements that
reasonableness is a deferential standard that focuses on “justification, transparency and
intelligibility in the decision-making process,” and that the decision under review must fall
“within a range of possible, acceptable outcomes that are defensible in regards to the facts and
the law.”211
Of course, neither bromide offers any practical means of identifying reasonableness.
The same applies to the Court’s additional clarifications that reasonableness “takes its colour
208
Dunsmuir, supra note 188 at para. 46. 209
Comtois, “From Deference to Governance”, supra note 10 at 24. See also Barak, Proportionality, supra note 62
at 374, who makes the same point about the concept of reasonableness generally. 210
Paul Daly, “The Scope and Meaning of Reasonableness Review” in Joseph T Robertson, Peter A Gall & Paul
Daly, Judicial Deference to Administrative Tribunals in Canada: Its History and Future (Toronto: LexisNexis,
2014) at 1 [Daly, “The Scope and Meaning of Reasonableness”]. 211
Dunsmuir, supra note 188 at para. 47.
49
from the context,” and that the range of reasonable alternatives widens or narrows depending on the
nature of the question at issue or other circumstances.212
While helpful in identifying
reasonableness review as an essentially contextual inquiry, these too fail to provide any practical
guidance on how to determine when a decision is in fact reasonable.
A comprehensive description of reasonableness review would involve a much larger endeavour
than required here.213
For the purposes of this discussion, suffice it to say that there is no
singular approach to identifying or explicating how the standard is supposed to function. More
than 30 years after Dickson C.J.’s comment in Slaight that “patent unreasonableness rests to a
large extent on unarticulated and undeveloped values,”214
the same might be easily said of
reasonableness review.215
This should come as no surprise. Tests of general application, as the
Honourable John Evans recently observed, “have never comfortably fitted the complex,
infinitely varied and messy realities of public administration,” leaving the law relating to the
standard of review of administrative action a “work in progress.”216
But larger trends are visible. Canvassing the Court’s case law on substantive review since
CUPE, Sheila Wildeman observes “a deep instability or vacillation as between correctness-style
attitudes of judicial supremacy and patent unreasonableness-style attitudes of judicial
212
McLean, supra note 192 at paragraphs 37-41; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 at
paragraphs 17-18 and 23; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at paragraph 59; See also
Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56; Canada (Attorney General) v.
Canadian Human Rights Commission, 2013 FCA 75; Canada (Attorney General) v. Abraham, 2012 FCA 266 at
paragraphs 37-50; 213
For a lengthy and excellent treatment, however, see Wildeman, “Romancing Reasonableness”, supra note 175. 214
Slaight 215
Paul Daly, A Theory of Deference (Cambridge: Cambridge University Press, 2012) 142 [Daly, A Theory of
Deference]. 216
The Honourable John M Evans, “Standards of Review in Administrative Law” (2013) 26 CJALP 67 at 79.
50
abdication,” decisions that offer models of both deference and interventionism.217
Matthew
Lewans labels these trends the Court’s “restrictive” and “restorative approaches,” respectively,
the former leaving no room for interpretive disagreement between courts and tribunals, and the
latter either imposing no duty on decision-makers to provide reasons or enabling judges to fill in
gaps in reasoning.218
This duality is unsurprising. After all, reasonableness is not a unitary yardstick of legality, but
rather “a means of structuring the discourse on deference.”219
And, at root, this discourse is
informed by the same two competing rule of law imperatives that the standard or review analysis
attempts to reconcile: preserving administrative legality and respecting legislative intent. The
Court’s “correctness-style attitudes of judicial supremacy” – its “restrictive approach” – and its
“patent unreasonableness-style attitudes of judicial abdication” – or its “restorative approach” –
are simply manifestations of these individual forces. In every case, one of them has to win out.
Thus, this general “instability” should raise no consternation. Indeed, Paul Daly argues that “the
root of the problem” is the attempt to maintain only one standard of deferential review, and that
there may very well be two.220
What should raise alarm is the Court’s current willingness, as Lewans recognizes, to fill in gaps
in administrative reasoning. This approach follows Newfoundland and Labrador Nurses’ Union
217
Wildeman, “Romancing Reasonableness”, supra note 175 at 366-377. 218
Lewans, “Deference and Reasonableness”, supra note 79 at 94. 219
Grant Huscroft, “Judicial Review from CUPE to CUPE: Less Is Not Always More” in Grant Huscroft and
Michael Taggart, eds, Inside and outside Canadian administrative law: Essays in Honour of David Mullan
(Toronto: University of Toronto Press, 2006) 296 at 297. He made this comment about the pragmatic functional
approach but it is equally helpful here. 220
Daly, “The Scope and Meaning of Reasonableness Review”, supra note 209 at 30.
51
v. Newfoundland and Labrador (Treasury Board),221
the Court’s most notable explication of
reasonableness review since Dunsmuir. In that case, as in Dunsmuir and on several other
occasions, the Court endorsed David Dyzenhaus’s concept of “deference as respect.” 222
But it
went much further. In particular, it placed inordinate emphasis on the notion that “deference as
respect” requires “respectful attention to the reasons offered or which could be offered in support
of a decision,”223
along with the idea that “even if the reasons in fact given do not seem wholly
adequate to support the decision, the court must first seek to supplement them before it seeks to
subvert them” [emphasis added].224
Taking these statements out of content,225
the Court has
severely minimized the level of justification that administrative actors need to provide in order to
substantiate their decisions. In fact, several of the Court’s recent judgments illustrate a form of
reasonableness review that, going further than simply filling in gaps in reasoning, actively
excuses failures of transparency and justification.
Consider Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association.226
That case involved numerous complaints to the Information and Privacy Commissioner of
Alberta alleging that the Alberta Teachers’ Association (“ATA”) disclosed personal information
in contravention of the province’s Personal Information Protection Act (“PIPA”). At the time,
s. 50(5) of PIPA provided that an inquiry into an alleged breach of the Act “must be completed
within 90 days” unless the Commissioner notifies the parties otherwise and provides an
221
2011 SCC 62 [Newfoundland Nurses]. 222
Ibid at paras. 11-13. See also Baker, supra note 63 at paras. 48, 65; Trinity Western University v. British
Columbia College of Teachers, 2001 SCC 31 at para. 61; Dunsmuir, supra note 188 at para. 48; Alberta Teachers',
supra note 152 at para. 52. 223
Dyzenhaus, “The Politics of Deference”, supra note 9 at 286. 224
Ibid at 304. 225
Daly, “The Scope and Meaning of Reasonableness Review”, supra note 209 at 21. As Daly, points out
Newfoundland Nurses was meant to address situations in which courts are tasked with reviewing sparse, not entirely
absent, reasons. 226
Supra note 152.
52
anticipated date for completing the inquiry. Almost two years after the complaints were
initiated, the Commissioner extended the estimated date on which the inquiry would be
concluded, seven months after which the Commissioner found that the ATA had contravened
PIPA. The ATA challenged the propriety of this extension for the first time on judicial review,
arguing that the inquiry automatically terminated as a result of the Commissioner extending the
90-day period only after that period expired. Agreeing to hear the challenge, the Court was then
left to review a decision – i.e., the Commissioner’s interpretation of s. 50(5) of PIPA – for which
it had no immediate reasons. The issue then: how can the Court review a decision for which
there are no reasons? The Court found that it did not have to look far, relying on the
Commissioner’s interpretations of s. 50(5) in other matters, which the Court found provided a
reasonable basis for the “implied decision” in this case.227
The decision in McLean v. British Columbia (Securities Commission)228
also ventures into this
metaphysical realm of implied reasoning. In that case, McLean and the Ontario Securities
Commission began discussions in July 2001 about “certain possible improper actions” that
McLean was alleged to have committed. In September 2008, they entered into a settlement
agreement. Almost a year and a half later, the Executive Director of the B.C. Securities
Commission notified McLean that is was invoking s. 161 of the B.C. Securities Act,229
which
allows the Commission to act in the public interest by imposing sanctions on a person who has
“agreed with a securities regulatory authority in Canada or elsewhere to be subject to sanctions,
conditions, restrictions or requirements.” McLean disputed the ability to make such an order
given s. 159 of the Act, which requires that such proceedings “not be commenced more than six
227
Ibid at paras. 56-72. 228
Supra note 192. 229
RSBC 1996, c 418.
53
years after the date of the events that give rise to the proceedings.” This raised the key issue in
the case: what were “the events” giving rise to a proceeding under the Act – the Ontario
Commission’s allegations of misconduct, or the settlement agreement many years later? No oral
hearing was requested or held. The Commission, without offering any interpretation of its
jurisdiction, ordered McLean to cease trading in securities for over three years.
The British Columbia Court of Appeal remitted the matter back to the Commission to explain its
order.230
Although it held that the Commission’s reasons on the limitation period issue were “not
essential” given that they involved a question of law (i.e., statutory interpretation) to which the
standard of correctness applies, the Court held that the Commissioner should have explained why
its order was in the public interest. On further appeal, the Supreme Court was asked to review
only the limitation period issue. Unlike the situation in Alberta Teachers’, in which the Court
had at least the decision-maker’s previous interpretation of the provision at issue to serve as
yardstick, here the Court had nothing. The Court, however, had no difficulty upholding the
Commissioner’s order. Finding that the appropriate standard of review was reasonableness, and
notwithstanding either the complete absence of reasons or the breach of procedural fairness
ordinarily resulting from the absence of reasons in such circumstances, the Court found that the
Commissioner’s interpretation was ultimately consistent with the proper application of the rules
of statutory interpretation and, thus, reasonable.
Still more troubling is Agraira v. Canada (Public Safety and Emergency Preparedness).231
That
case involved a Libyan nation who claimed refugee status on the basis that he was previously
230
2011 BCCA 45 at paras. 27-32. 231
Supra note 121.
54
involved in a terrorist organization, a fact that lead him to be deemed inadmissible for security
grounds under the Immigration and Refugee Protection Act (“IRPA”).232
He then applied for
ministerial relief from the determination of inadmissibility under s. 34(2) of IRPA, which, at the
relevant time, provided that a foreign national was not inadmissible on security grounds where
he “satisfies the Minister that their presence in Canada would not be detrimental to the national
interest.” To facilitate this determination, the Canada Border Services Agency prepared a
briefing note for the Minister, recommending that Agraira be granted relief since there was “not
enough evidence to conclude that [his] continued presence in Canada would be detrimental to the
national interest.”233
However, the Minister denied Agraira’s request. In short, the Minister
concluded that “[i]t is not in the national interest to admit individuals who have had sustained
contact with known terrorist and/or terrorist-connected organizations.”234
Based on his implied
interpretation of IRPA’s use of the term “national interest,” the Minister clearly thought that
one’s prior association with a terrorist organization is inimical to Canada’s national interest, and
that this fact was determinative. The problem: this interpretation gave short shrift to the
Ministry’s guidelines suggesting a host of other factors relevant to interpreting the concept of
“national interest.” The Court’s response: although the Minister’s implied interpretation was
based “predominantly” on national security and public safety, he had considered those other
factors too.235
In doing so, the Court imputed to the Minister an implied interpretation of IRPA
that “he plainly did not hold.”236
232
SC 2001, c 27. 233
Agraira, supra note 122 at para. 12. 234
Ibid at para. 13. 235
Agraira, supra note 122 at paras. 64, 86-7. 236
Daly, “The Scope and Meaning of Reasonableness”, supra note 209 at 21.
55
These decisions illustrate the downside of deference. In attempting to avoid scrutinizing
decisions too closely, the Court now endeavours to see reasons where none exist, an effort that
may impute reasons to decision-makers that they never had. The Court has warned that giving
respectful attention to the reasons “which could be offered in support of a decision” is not a
“carte blanche to reformulate a tribunal’s decision in a way that casts aside an unreasonable
chain of analysis in favour of the court’s own rationale for the result.”237
However, its recent
precedents suggest that it is willing to go to extraordinary lengths to justify decisions before
casting them aside as unreasonable. The trouble with such an approach, of course, is that
reviewing courts cannot “see into the mind of an administrative decision-maker and answer
counter-factuals about what the decision-maker would have done had different arguments been
made.” In their willingness to fill in gaps in reasoning, courts may end up insulating the
decisions of administrators who, if made aware of the deficiencies in their reasoning, might well
have reached different conclusions.238
As explained below, this potential helps explain the key
difference between judicial review under the Oakes test and the Doré framework.
(d) Comparing Oakes to administrative law proportionality
In Oakes, the Supreme Court held that, in order to satisfy s. 1 of the Charter, government
activity must satisfy two central criteria that, in substance, require the government to furnish a
“reasoned demonstration of the good which the law may achieve in relation to the seriousness of
the infringement.”239
First, the objective which the impugned legislation is designed to serve
must be pressing and substantial. Second, it must pass a proportionality test based on three
237
Alberta Teachers’, supra note 152 at para. 54 238
Lemus v. Canada (Citizenship and Immigration), 2014 FCA 114 at para. 35. 239
RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199 at para. 129.
56
elements: (a) the measure adopted must be rationally connected to the objective; (b) the measure
chosen should minimally impair the right as little as possible, and (c) there must be
proportionality between the measure’s objectives and effects.
The Doré framework looks much the same, at least superficially. On judicial review of a
discretionary administrative decision for compliance with the Charter, the nature of the
reasonableness analysis also centres on proportionality, namely on ensuring that the decision
interferes with the relevant Charter guarantee no more than is necessary given the animating
statutory objective. Thus, the reviewing court must ask whether the decision-maker
disproportionately, and therefore unreasonably, limited a Charter right. In sum, both tests
demand the same ultimate objective. Although the Doré framework does not explicitly mention
concepts like “pressing and substantial purpose” or “minimal impairment,” these are necessarily
entailed in evaluating proportionality. Despite Doré’s shortcomings, authoring the limitation of
Charter rights for trivial purposes, or purposes disconnected from legitimate legislative aims, is
surely not one of them.
They also share other functional similarities. Although both foster transparent, objective, and
reasoned justification for limiting constitutional rights, neither forecloses the possibility that
subjectivity will form part of, or even dictate, the analysis.240
Both frameworks may be reduced
to an exercise in justifying one’s desired outcome using the language of proportionality. Further,
and in this same vein, both tests are context-specific. Where s. 1 is concerned, context is “the
indispensable handmaiden to the proper characterization of the objective of the impugned
provision, to determining whether that objective is justified, and to weighing whether the means
240
Re Oakes Bredt & Dodek at 187.
57
used are sufficiently closely related to the valid objective so as to justify an infringement of a
Charter right.”241
In administrative law review, reasonableness “takes its colour from the
context,”242
and “must be assessed in the context of the particular type of decision making
involved and all relevant factors.”243
This fact makes their application pliable to individual
judicial sensitivity.
But both approaches differ in one key respect.244
As explained above, the role that judicial
deference plays within each is divergent. Under Oakes, deference plays its most potent role
within the rubric of minimal impairment, the requirement responsible for invalidating almost
every piece of legislation that fails the Oakes test.245
While government actors are required to
ensure that they limit Charter rights in the least restrictive fashion possible,246
they are not held
to a standard of perfection. Rather, the impugned activity is beyond legal reproach provided it
falls within “a range of reasonable alternatives.” This is precisely where, Abella J. claimed, the
role of judicial review for reasonableness aligns with Oakes. Again, as she held:
As this Court recognized in RJR-MacDonald Inc. v. Canada (Attorney General),
[1995] 3 S.C.R. 199, at para. 160, “courts must accord some leeway to the
legislator” in the Charter balancing exercise, and the proportionality test will be
satisfied if the measure “falls within a range of reasonable alternatives”. The
same is true in the context of a review of an administrative decision for
reasonableness, where decision-makers are entitled to a measure of deference so
long as the decision, in the words of Dunsmuir, “falls within a range of possible,
acceptable outcomes.247
241
Thomson Newspapers Co. (c.o.b. Globe and Mail) v. Canada (Attorney General), [1998] 1 S.C.R. 877 at 939 per
Bastarache J.. Choudry at 520-521 – context is everything. 242
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 59. 243
Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 at para. 18. 244
For a full treatment of their differences, see Daly, A Theory of Deference, supra note 214 at 202-16. 245
Fox-Decent & Pless, “The Charter and Administrative Law” supra note 67 at 424. 246
The Supreme Court recently described this aspect of the test under Oakes as asking whether “there is an
alternative, less drastic means of achieving the objective in a real and substantial manner.” See Alberta v. Hutterian
Brethren, supra note 89 at para. 55. 247
Doré, supra note 1 at para. 56.
58
To be certain, the contextual analysis required by s. 1 may result in a posture resembling the type
of deference that government actors ordinarily receive under reasonableness review.248
However, the scope of this deference within each framework is divergent. In assessing the range
of reasonable alternatives under Oakes, deference does not generally apply – Oakes, of course, is
a test based on correctness review. Deference applies in only limited circumstances that call into
the question the wisdom or legitimacy of the judiciary substituting the legislature’s view with its
own. This typically involves situations in which the impugned law addresses a complex social
issue,249
is designed to protect a vulnerable group,250
allocates scare resources,251
or attempts to
reconcile competing interests.252
Absent one of these scenarios, or some similar set of
circumstances raising the need for deference, courts need not defer to government actors and,
thus, may freely set aside reasoning with which they disagree. Judicial scrutiny is permissibly
intense, and courts can recalibrate the “balance” struck by government as they see fit.
In contrast, reasonableness review inherently insulates the administrative sphere from judicial
intervention. Deference informs the entire exercise of reasonableness review, in every case. In
the absence of some reviewable error, reasonableness necessarily mandates judicial restraint. As
discussed above, this approach is based on a respect for relative expertise, legislative intent and,
more significantly, by the Court’s more recent collaborative conception of the separation of
powers based on a culture of justification. Put simply, any suggestion that the Oakes test and
reasonableness review are the same simply because they involve deference is plainly wrong.
248
Cartier, The Baker Effect at 71; Christopher Bredt & Adam M Dodek, “The Increasing Irrelevance of Section 1
of the Charter” (2001) 14 Sup Ct Law Rev; Sujit Choudhry, “So What is the Real Legacy of Oakes?: Two Decades
of Proportionality Analysis under the Canadian Charter’s Section 1” (2006) 34 Sup Ct L Rev 501; Christopher D.
Bredt, “The Right to Equality and Oakes: Time for Change” (2009) 27 NJCL 59 249
Hutterian Brethren, supra note 89 at para. 53. 250
See, for example, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927. 251
Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624 at para. 85. 252
See, for example, McKinney v. University of Guelph, [1990] 3 SCR 229.
59
Taken alone, this difference should be enough to doubt the Court’s claim that the Oakes and
Doré frameworks involve “conceptual harmony.” However, there are two additional, related
reasons explaining Doré’s derogation from s. 1’s guarantee as that standard is embodied in
Oakes. Again, each of these relates to the Court’s current application of the standard of
reasonableness.
First, several of the Court’s recent decisions turn its collaborative conception of the separation of
powers or, as Wildeman calls it, the “wider constitutional project” of public justification, into a
joint project in administrative reasoning. Decisions like Newfoundland Nurses and those
following not only give administrators broad law-making power, but instruct reviewing courts to
actively, if not substantively, assist decision-makers to satisfy Dunsmuir’s call for transparency
and accountability. Having eschewed an approach to judicial review based on “a line-by-line
treasure hunt for error,”253
the Court has opened season on a new hunt, one for reasons “which
could be offered in support of a decision.” In practical terms, this means that administrative
decision-makers may be permitted to justify their decisions through a less rigorous analysis
under the Doré framework than otherwise required under Oakes.254
Decisions that may have
once been quashed under Oakes’s correctness review may now be leavened through this
“restorative” approach under which courts first seek to supplement, before subverting, them.
Even worse, as a judgment like Agraira demonstrates, the approach to reasonableness review
may even be used to impute important considerations to decision-makers that played no part in
their reasoning, transforming them entirely. This distinction from Oakes is undeniable.
253
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC
34 at para. 54. 254
This argument is made throughout Parker, “Discretionary Administrative Decisions and the Charter”, supra note
107, but is based on the example of reasonableness review in the Court’s own “examination” of the Disciple
Council’s decision.
60
Second, the Court’s application of reasonableness review in Doré offers a more troubling
prospect. Applying correctness review, the Court may have very well quashed the Discipline
Council’s decision. However, applying an approach to reasonableness review claimed to be
based on proportionality, the Court displayed no concern for proportionality whatsoever. This
appears to be based on a further misapplication of David Dyzenhaus’s concept of “deference as
respect.” In essence, the concept recognizes the “independent weight that judges should give to
tribunal’s reasoning.”255
The relevant question on judicial review under this approach, even
where fundamental rights are concerned, is not whether the court would have reached a different
conclusion, which is what Abella J. appeared to ask,256
but whether the reasons offered “did in
fact and also could in principle justify the conclusions reached.”257
Confronted with competency
through good reasoning – what Dyzenhaus and Taggart call “the pull of justification”258
– the
“complimentary institutional response from the bench is to respect that institutional capacity.”259
As applied by the Court in Doré, however, the Court’s approach to reasonableness review is
based a free-floating form of deference disconnected from the reasons under review. Lower
courts are now taking this lead. Early indications of Doré’s curial application are, for the most
part, that most courts are simply “deferring” to administrative decision-makers, ignoring the
255
Dyzenhaus, “The Politics of Deference,” supra note 9 at para. 302-3. See also, generally, “Proportionality and
Deference in a Culture of Justification” in G. Huscroft, B.W. Miller, and G. Webber (eds), Proportionality and the
Rule of Law: Rights Justification, Reasoning (New York, Cambridge University Press, 2014) 234; Dyzenhaus,
“Dignity in Administrative Law,” supra note 67. 256
Recall that Abella J.’s conclusion was that the Council’s decision “cannot be said to represent an unreasonable
balance of Mr. Doré’s expressive rights with the statutory objectives.” See Doré, supra note 1 at para. 71. 257
Dyzenhaus, “The Politics of Deference,” supra note 9 at para. 303-4. 258
David Dyzenhaus and Michael Taggart, “Reasoned Decisions and Legal Theory” in Douglas E. Edlin, ed.,
Common Law Theory (New York: Cambridge University Press, 2007) 134. 259
Mary Liston, “’Alert, alive and sensitive’: Baker, the Duty to Give Reasons, and the Ethos of Justification in
Canadian Public Law, in David Dyzenhaus, ed, The Unity of Public Law (Portland, Oregon: Hart Publishing,
2004)113 at 117.
61
concept of proportionality entirely or, likewise, refusing to ask how “how the Charter value at
issue will best be protected in view of the statutory objectives.”260
V. Conclusion
This thesis has attempted to illustrate that, with the door to proportionality now swung open into
administrative law, the view is disappointing. Doré embodies a welcome, further shift away
from a formal conception of the separation of powers towards a greater culture of justification.
But at what cost? It is not clear whether the methodology that administrative decision-makers
must now employ when engaging the Charter resembles Oakes or something trivializing
fundamental rights into just another part of the factual matrix. Nor is it clear how such decisions
should be reviewed through the lens of reasonableness. Courts applying the Supreme Court’s
latest guidance will likely strain to help decision-makers complete critical analytical turns,
assuming they apply. More unnerving, they might also follow the Supreme Court’s own lead in
Doré and refuse to critically engage the reasons under review. All of these facts bring into view
a palpable dilution of the constitutional guarantee that the Charter’s rights are subject to
“reasonably and demonstrably justified limits in a free and democratic society” in a number of
respects. The answer, I suggest, is that in order to fulfil their essential accountability function
and truly ensure “rigorous Charter protection,” courts must require administrative actors to
justify their decisions in a manner that generally tracks the analytical criteria of the Oakes test. I
260
Kamel v. Attorney General of Canada, 2013 FCA 103; Brar v. Attorney general of Canada, 2014 FC 763; El
Shurafa v. Attorney General of Canada, 2014 FC 789; Québec (Procureur général) c. Loyola High School, 2012
QCCA 2139; Ktunaxa Nation v. British (Forests, Lands and Natural Resources), 2014 BCSC 568.
62
am not alone in this suggestion,261
and at least one court has taken such an approach.262
Failing
further guidance from the Supreme Court to this end, the door to proportionality will,
unfortunately, recall the lid to Pandora’s Box.
261
Parker, “Discretionary Administrative Decisions and the Charter”, supra note 107 at 188 et seq. Macklin,
“Charter Right or Charter-Lite”, supra note 77. 262
Wilson v. University of Calgary, 2014 ABQB 190.
63
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