Section 1 of the Charter of Rights and Freedoms provides that any infringement of a Charter right must be "prescribed by law", a requirement that must be satisfied by the government before an application of the proportionality test. The jurisprudence on section 1 is very messy and has been criticized. Indeed, the Supreme Court of Canada mentioned this criticism in its decision in Doré v. Barreau du Québec, 2012 SCC 12. It even relied on the criticism to justify overruling its previous decision in Multani (see my earlier post here). The funny thing is that the basic problem is not solved by Doré. I am going to suggest, however, that the Court's earlier decision in R. v. Conway, 2010 SCC 22 might point a way out of the morass.
According to the approach laid down by Lamer C.J. in Slaight Communications v. Davidson, [1989] 1 SCR 1038, there are two ways Charter rights can be infringed: by general norms (such as statutes, regulations or, possibly, guidelines) or by administrative decisions.
No test has ever been adopted by the Court to distinguish between these two situations. Reviewing courts should ask if the general under which an administrative decision was taken infringed the Charter right in question either explicitly or by necessary implication, but this criterion is far too abstract and the jurisprudence has, understandably, had neither rhyme nor reason (see here).
In Doré itself, there is a good argument that the real problem was the Code of Ethics under which the applicant, a lawyer, was punished: it is not clear that the disciplinary council had any option but to reprimand him once it had found that his conduct breached the standards of "objectivity, moderation, and dignity". It would be unfair to criticize the Court for not picking up on this in Doré, because the applicant did not challenge the constitutionality of the Code of Ethics. Indeed, the absence of any meaningful criterion for distinguishing general norms from individualized decisions gives litigants much scope to decide what sort of a challenge they wish to make.
Consider, though, what the Court said in Conway about administrative bodies' jurisdiction to award Charter remedies. As long as an administrative decision-maker has an explicit or implicit power to consider questions of law (a very low barrier), it can grant Charter remedies, unless (a) there is a statutory prohibition on applying the Charter or (b) granting the remedy sought would breach the decision-maker's statutory mandate. Focusing on the latter may reveal the way out of the section 1 morass.
For example, given that the disciplinary council in Doré had found that the lawyer's conduct breached the Code of Ethics, it surely could not have given effect to any Charter argument based on freedom of expression. Even if the lawyer had raised the Charter argument before the disciplinary council, it could not have granted his sought Charter remedy of not being punished. In doing otherwise, it would have breached its statutory mandate to maintain the dignity of the profession.
I suggest that in any case involving the "prescribed by law" requirement of section 1 of the Charter, a reviewing court should perform a Conway analysis to determine whether the decision-maker's constitutive statute precludes it from granting the Charter remedy sought by the applicant. If so, then the applicant must challenge the general norm (statute, regulation or guideline) under which the decision was made, and not the decision itself. The advantage of this approach is that it is much more concrete than trying to determine in the abstract whether the Charter infringement was caused by a general norm or individualized decision.
Moreover, if Charter arguments are raised before the administrative decision-maker, it will
be very difficult to avoid a Conway-type analysis. Arguments will have to be made on the record about whether its constitutive statute prevented the administrative decision-maker from granting a Charter remedy. These arguments will then be available for assessment by a reviewing court. This would not have been the case prior to Conway and adds to the attraction of my proposed approach.
This is not a perfect solution. Administrative decision-makers not trained as lawyers might have difficulty in determining whether their constitutive statutes prevent them from granting Charter remedies. Courts might not bother with a Conway-type analysis. Or reasonable people could simply disagree about whether a particular statute precludes the grant of a Charter remedy. In particular, cases might not always be cut and dried. For example, if Doré had asked by way of remedy that any penalty be reduced in light of the fact that his Charter right to freedom of expression was implicated, the Code of Ethics might not have stood in his way.
Despite these concerns, if the post-Conway approach were adopted, lawyers and judges would be operating within a shared analytical framework, a framework within which the questions at issue are much more clearly defined. The best should not be made the enemy of the good.
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