Wednesday, 16 May 2012

Avoiding 'Charter-Free' Zones

One of the questions not broached by the Supreme Court of Canada in Doré (see my earlier post here) was what happens when the legislature has attempted to exclude consideration of the Charter by an administrative decision-maker.

In a pair of decisions released in 2003, the Court made clear that where an administrative decision-maker has an express or implied power to determine questions of law, it will also have the power to adjudicate on Charter or constitutional challenges to its governing statute, as long as that power has not been excluded by the legislature, expressly or by necessary implication. More recently, the Court has held that an administrative decision-maker which is not lumbered with these impediments may go on to award Charter remedies, as long as the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal.

In both British Columbia and Alberta, there are statutory provisions preventing certain decision-makers from considering Charter arguments. The next question is how broadly those provisions should be read, given the need for express or necessarily implicit exclusion of the power to decide Charter questions.

In Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, the question was whether the B.C. Utilities Commission could consider whether the province had adequately discharged its constitutional duty to consult with First Nations. The Court held that the Commission had a general power to consider questions of law and, thus, constitutional questions. It then drilled down into the provision of the B.C. Administrative Tribunals Act that sought to remove the Commission's power to consider constitutional questions (s. 44, as further defined by s. 1 and a related statute). Taking a close look at the terms of the relevant statutory provisions, the Court concluded that only challenges to the constitutional validity or constitutional applicability of a law, or an application for a constitutional remedy, were precluded. The Court accepted that, in broad terms, the challenge was constitutional in nature, but that the statutory provisions did not indicate a clear intention on the part of the legislature to exclude from the Commission’s jurisdiction the duty to consider whether the Crown has discharged its duty to consult with holders of relevant Aboriginal interests (at para. 72).

Another way to put the same point might be that in exercising its powers, the Commission was obliged to do so in a manner consistent with constitutional principles and provisions; this is hardly a radical proposition (see e.g. para. 56 here), but it would be radical to oblige an administrative decision-maker not to exercise its powers in a manner consistent with constitutional principles and provisions.

However, this line of argument might run into difficulty when faced with a more comprehensive legislative attempt to oust Charter jurisdiction, as the Alberta Court of Appeals recently explained in United Food and Commercial Workers, Local 401 v Alberta (Attorney General). Here, the question was whether an adjudicator appointed by the Information and Privacy Commissioner had acted reasonably in determining that a union could not collect and use video recordings of individuals crossing a picket line. The adjudicator never considered the effect of its decision on Charter rights, because of s. 11 of the Administrative Procedures and Jurisdiction Act, a general ouster of Charter jurisdiction that can only be reversed by the provincial cabinet. The ouster provisions are very broadly drawn and apply to:
(i)    any challenge, by virtue of the Constitution of Canada or the Alberta Bill of Rights, to the applicability or validity of an enactment of the Parliament of Canada or an enactment of the Legislature of Alberta, or
(ii)    a determination of any right under the Constitution of Canada or the Alberta Bill of Rights.
It was thus "beyond the mandate" of the adjudicator to "engage" Charter issues (at para. 44).  The Court of Appeal gave a nod to the need to consider fundamental values (at para. 42), but it remains to be seen how broadly this nod will be interpreted.

It is worth emphasizing that Justice Abella noted in Doré that administrative decision-makers "must act consistently with the values underlying the grant of discretion, including Charter values" (at para. 24). With the reference to "values", it seems open to an individual to argue that the decision-maker has to take account of Charter values, such as fairness, justice and equity without the individual having to prove that an actual Charter right has been infringed. Even the broadly drawn provisions in the Alberta legislation do not prevent Charter values being taken into consideration.

The challenge for applicants, advocates and, indeed, decision-makers who wish to consider Charter issues despite legislative attempts to prevent them from doing so, will be to couch their arguments in terms of values rather than in the technical terms of Charter rights and proportionality tests.

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