But does invoking the authority of the constitution, and in particular its Charter of Rights and Freedoms, require an individual to frame their arguments as a lawyer would in the formal setting of a courtroom? In Doré v. Barreau du Québec, 2012 SCC 12, the Supreme Court of Canada suggested that the answer was 'No'. Decision-makers should pay attention to Charter "values", not necessarily Charter "rights", in the exercise of their discretionary authority. The message is: less legalism in administrative decision-making.
Defining Charter values is a difficult task, but let's bracket it for the purposes of this post (for competing takes, see my paper with Angela Cameron and this recent one by Lorne Sossin and Mark Friedman). There is a more difficult question: what is the role of Charter values in statutory interpretation by administrative decision-makers?
The Ontario Human Rights Tribunal said the following in a recent decision concerning the province's Human Rights Code:
The boundaries of what falls under the social areas of services, accommodation, … and employment are not always clear. An adjudicator must undertake an interpretation of the broad words in the Code to determine, in a contested case, whether this is the type of activity that it regulates. … The need for a large and liberal approach to the rights in the Code does not relieve those applying it from the difficult task of interpreting its boundaries...
Taylor-Baptiste v. O.P.S.E.U., 2014 ONSC 2169.
One might ask how this
‘fits’ with two contemporary rules of statutory interpretation, (1) that where
the legislation is “clear” there is only one reasonable answer and the courts
must insist upon it and (2) that Charter values can only be considered if
the statutory provisions are ambiguous.
Two responses are possible, one
radical, one modest. A radical (like me) would say that the rules of statutory
interpretation do not bind administrative decision-makers, who are free to
fashion their own approaches to pursuing their statutory mandates. If courts want to go around enforcing “clear” statutory
provisions after the fact, that is their business. As Abella J. recently put it, in an otherwise orthodox opinion on statutory interpretation: "Only in the administrative law context is ambiguity not the
divining rod that attracts Charter values" (R. v. Clarke, 2014 SCC 28, at para. 16).
Someone more modest would say
that where the statutory provisions are ambiguous/broad/vague -- as in the Taylor-Baptiste case mentioned above -- Charter values
must be considered. This fits with R. v. Conway, 2010 SCC 22, which, although it only really bites where a remedy is sought, could be considered engaged when a
decision-maker flouts clear statutory language to achieve a Charter-values-inspired
policy goal. Even-handedness requires acknowledging that, in Clarke, Abella J. suggested that Doré is relevant only to exercises of discretion, but her opinion is not clear on this point.
On either the radical or the
modest approach, Charter values have an important role to play in
interpretation by administrative decision-makers.
That does not resolve the
question whether Charter values now fully occupy the field previously occupied by Charter values. Subject to
one caveat, I would say they do. Doré represents a laudable attempt to
de-formalize the administrative process by removing the need to engage in a
full-fledged Charter infringement and s. 1 analysis, which is liable to
be time-consuming, costly and difficult for the lay litigant. Charter values
are to infuse the exercise of discretion -- and, as I suggested, statutory
interpretation too. The extent to which they do so depends on one's view of the scope of administrative autonomy and, in particular, the appropriate role of principles of statutory interpretation in the administrative process.
Caveat: the individual retains
the option of asking for a Charter remedy, in which case I presume a
formal Charter analysis remains necessary. An individual who pursues
this option runs the risk of being told that the remedy sought is unavailable
given the constraints of the statutory scheme. For tactical reasons, I suspect, few individuals will pursue this particular avenue.
Professor Daly,
ReplyDeleteVery interesting post. I suspect I know the answer to this question, but indulge me: how concerned are you that your radical approach will essentially boil down to administrative decision makers reaching whatever result they please, relatively clear statutory wording to the contrary notwithstanding? Charter values, as you know, are myriad and extremely abstract. They include such values as democracy, liberty, autonomy, all the freedoms, equality, and the Charter value to swallow all Charter values, "human dignity". It would be the rare result that could not be achieved by relying upon one of the full range of uncontested 'goods' in a democratic society's lexicon.
At risk of sounding (and being) overly-dramatic, if ADMs can ignore principles of statutory interpretation, and need identify no ambiguity to bring Charter values to bear, what's the point of writing down laws at all? Or rather, why would we call them laws? Why not just create an agency, set out a range of relatively comprehensive but optional guidelines, and go from there?
Warm regards,
- Concerned in Canada