Charter Application by Administrative Tribunals: Statutory Interpretation

Canadian courts have come to accept that the constitution is not some sort of holy grail that administrative decision-makers should not touch. As it is the supreme law of the land, its writ ought to run in any government agency, and its authority may be invoked by individuals in almost any decision-making setting.

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?