To my mind, the most dramatic of these recent decisions is that of a unanimous Court in Doré v. Barreau du Québec. Dramatic because the Court overruled a recent precedent, Multani, itself merely the confirmation of a consistent line of reasoning which can be traced back to the Court's decision in Slaight Communications v. Davidson. And the most dramatic because it has implications both for how administrative decision-makers consider Charter arguments and how courts should approach applications for judicial review on the basis that Charter rights were infringed by an administrative decision-maker.
Briefly, a majority of the Court held in Multani that administrative law and constitutional law must be distinguished. When a legislative provision expressly or implicitly infringes a Charter right, the applicant must challenge the validity of the provision in question. When the source of the alleged infringement is the exercise of a discretionary power, the applicant must challenge the validity of the exercise of the discretionary power. This can be accomplished in one of two ways: the applicant can argue on classic administrative law grounds that the power was exercised in an illegal, unreasonable or procedurally unfair manner; or the applicant can argue on constitutional law grounds that the power infringed his or her Charter rights in a disproportionate manner. There were two sets of concurring reasons disagreeing with the analytical approach of the majority, one authored by Justice Abella (joined by Justice Deschamps) and the other authored by Justice LeBel. If the two sets of concurring reasons could be said to have a common theme, it was that the proportionality test applied to determine the proportionality of infringements of Charter rights was inappropriate where the applicant challenged an individualized decision rather than a legislative provision.
In Doré Justice Abella's vision of the relationship of the Charter and administrative law won out. The applicant was a lawyer who was reprimanded by his regulatory association for writing an intemperate letter to a trial judge with whom he had locked horns. The dispute between the two was extremely heated, but the letter was not made publicly available. The lawyer did not challenge the validity of the Code of Ethics under which he was punished, but challenged the decision as a violation of his right to freedom of expression.
Justice Abella was able to draw on significant academic authority for her decision to over-rule a very recent precedent, noting that the commentary post-Multani has been "consistently critical" (at para. 33). I have argued in Chapter 5 of my forthcoming book, A Theory of Deference in Administrative Law, that the Court got it right in Multani, but it seems I may be in a minority of one! This is not the place to detail those arguments, but it is worth noting a couple of mis-steps on Justice Abella's part. For one thing, at para. 52, she wrongly conflates the application of the proportionality test with review for correctness. It is in fact a review for proportionality, not correctness, and does not allow the reviewing court to step into the shoes of a decision-maker exercising a discretionary power. Why? The correct interpretation of the Charter is that proportionate limitations on rights are acceptable, not that whenever a Charter challenge is made the reviewing court must substitute its judgment for that of the decision-maker. For another, at para. 56, she takes the most deferential possible view of the proportionality test (that an infringement is proportionate if it falls within a range of reasonable alternatives), in order to suggest a commonality between review for proportionality and review for unreasonableness. But viewed in the round, the multi-pronged proportionality test is much more rigorous than review for unreasonableness. It is hard to see how the purposes of the Charter are served by lowering the standard of protection afforded to Charter rights.
Nonetheless, her guidance to decision-makers is clear and cogent:
How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances the Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives...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 (at paras. 55-56).It is hard to quibble with this approach. Administrative decision-makers ought not to be hamstrung by a requirement to conduct a formalistic inquiry into whether their decisions would survive the application of the proportionality test, as the House of Lords has recognized. Rather, they should attempt to achieve their statutory objectives with one eye on the Charter interests and other social values at play. There is no need to 'legalize' or 'judiciarize' administrative processes. Indeed, if it were desirable to do so, then the various functions of administrative decision-makers could be handed over to courts. Conscious decisions to keep matters away from the courts, at least initially, should be respected, and Justice Abella's guidance coheres with the general aim of providing non-judicial machinery for the resolution of disputes.
But applauding this aspect of Justice Abella's reasons is not to applaud her guidance to reviewing courts:
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...If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable (at paras. 57-58).Instead of the rigorous, well-known and well-defined proportionality test, reviewing courts are henceforth required to conduct some sort of balancing test. Questions abound: what is a "proportionate balancing" that is not an application of the proportionality test? Is there a difference between a "proportionate balancing" and "properly balanced" and if so, what is it? What weights are to be given to the "Charter value" and the "statutory objectives"? Do different Charter values have different weights? What is the "nature of the decision" and how does it influence the analysis? Can it really be said that this formulation is adequately protective of Charter rights? It will be interesting to see how lower courts address these questions.
The ultimate conclusion in Doré is rather unsatisfactory. Justice Abella signs off by commenting that, given the "excessive degree of vituperation in the letter’s context and tone", the decision to reprimand the applicant "cannot be said to represent an unreasonable balance of Mr. Doré’s expressive rights with the statutory objectives" (at para. 71). There is much emphasis in her discussion on the need to maintain civility in the legal profession, but there is no searching analysis of the extent to which the disciplinary committee actually did consider the applicant's interests in freedom of expression. Criticism may be robust, but may not exceed the "public’s reasonable expectations of a lawyer’s professionalism" (at para. 69). However, the fact that the letter was not made publicly available does not feature in the analysis. No attention is paid to the context in which the letter was written, most likely at a time when the author's tempers were running temporarily high. Absent too is any consideration of whether a formal reprimand was necessary to achieve the statutory objectives, though this is not surprising considering the replacement of the proportionality test with a less robust balancing exercise.
The fear I express in A Theory of Deference is that the sort of approach championed by Justice Abella will be under-protective of Charter rights. Hopefully this fear will not be borne out, but Doré does not seem to represent a promising start.