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?
Showing posts with label Charter. Show all posts
Showing posts with label Charter. Show all posts
Thursday, 12 June 2014
Sunday, 25 May 2014
Who Decides to Deport You When There's a Risk of Torture?
There is a piece in the latest print issue of Maclean's magazine (sub only) on a very interesting Federal Court case from earlier this month: Muhammad v. Canada (Citizenship and Immigration), 2014 FC 448.
M's details were posted on what I have dubbed "Canada's Least Wanted", the Canadian Border Services Agency's 'wanted' list of immigration violators. This began as a list of "war criminals" but has since been revised in tone and expanded in content. M argued that being placed on the list increased the risk that he would be tortured if returned to Pakistan.
Arrangements for deportation decisions of this nature are complex. Preliminary assessments are conducted on risks faced by the individual should s/he be returned and any security risks posed by the individual should s/he remain in Canada. These are delivered to a Ministerial Delegate who ultimately takes the decision to deport or not (see para. 71). Here, the Delegate rejected the assessment that M would be at risk of torture. Strickland J. held that this finding was unreasonable, the second time M has won a judicial review on this point. However, she rejected the argument that the Delegate was biased or that the decision-making structure was biased (para. 141).
Of greater interest are the facts, recounted in the Maclean's article, including a bizarre meeting between those responsible for the "Least Wanted" list and other members of the Delegate's department. We are assured by all concerned, and Strickland J., that the meeting was meaningless -- though "ill-advised" (para. 153) -- because of the absence of evidence that the Delegate was "influenced" by the meeting (para. 154). Of course, in bias cases, normally perception is what counts!
And more interesting still is a claim ultimately not addressed by Strickland J.: that M was entitled to have an independent decision-maker determine whether to deport him because his constitutional right to "life, liberty and security of the person" was engaged. Strickland J. was able to deal with the case on administrative law grounds and did not consider M's constitutional argument, but in a telling aside she noted:
Further questions then arise. Can any official in a department controlled by the executive take the deportation decision? It is arguable that no such official can make a decision with an entirely independent mind. Can the decision even be taken by the Minister? Deporting someone to a real risk of torture is arguably a decision that should not be tainted in the slightest by policy considerations.
Indeed, is this a decision that can only be taken by a court?
Which leads to the ultimate question: would any court ever deport someone to a real risk of torture?
M has now succeeded twice in judicial reviews of Delegate decisions. Who knows what a third decision would bring.
M's details were posted on what I have dubbed "Canada's Least Wanted", the Canadian Border Services Agency's 'wanted' list of immigration violators. This began as a list of "war criminals" but has since been revised in tone and expanded in content. M argued that being placed on the list increased the risk that he would be tortured if returned to Pakistan.
Arrangements for deportation decisions of this nature are complex. Preliminary assessments are conducted on risks faced by the individual should s/he be returned and any security risks posed by the individual should s/he remain in Canada. These are delivered to a Ministerial Delegate who ultimately takes the decision to deport or not (see para. 71). Here, the Delegate rejected the assessment that M would be at risk of torture. Strickland J. held that this finding was unreasonable, the second time M has won a judicial review on this point. However, she rejected the argument that the Delegate was biased or that the decision-making structure was biased (para. 141).
Of greater interest are the facts, recounted in the Maclean's article, including a bizarre meeting between those responsible for the "Least Wanted" list and other members of the Delegate's department. We are assured by all concerned, and Strickland J., that the meeting was meaningless -- though "ill-advised" (para. 153) -- because of the absence of evidence that the Delegate was "influenced" by the meeting (para. 154). Of course, in bias cases, normally perception is what counts!
And more interesting still is a claim ultimately not addressed by Strickland J.: that M was entitled to have an independent decision-maker determine whether to deport him because his constitutional right to "life, liberty and security of the person" was engaged. Strickland J. was able to deal with the case on administrative law grounds and did not consider M's constitutional argument, but in a telling aside she noted:
The independence question will have to be addressed some day. In Suresh at para. 78 the Supreme Court of Canada allowed for the possibility that individuals could be deported even to a real risk of torture in "exceptional circumstances" but these were not further defined. Given that the individual's constitutional rights are engaged, a rigorously fair process might well be required, presumably including a final determination by an independent decision-maker.[140] It is not disputed that there was considerable government interest in the CBSA’s wanted list and that there were concerns about the implications of a positive risk assessment on the list. It is therefore certainly not outside the realm of possibilities that, given this interest, a decision-maker could be inclined toward a certain result in the absence of sufficient hallmarks of independence.
Further questions then arise. Can any official in a department controlled by the executive take the deportation decision? It is arguable that no such official can make a decision with an entirely independent mind. Can the decision even be taken by the Minister? Deporting someone to a real risk of torture is arguably a decision that should not be tainted in the slightest by policy considerations.
Indeed, is this a decision that can only be taken by a court?
Which leads to the ultimate question: would any court ever deport someone to a real risk of torture?
M has now succeeded twice in judicial reviews of Delegate decisions. Who knows what a third decision would bring.
Friday, 9 November 2012
Section 1 of the Charter: A (Con)Way Out of the Morass?
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.
Monday, 1 October 2012
Can Omar Khadr Apply for Habeas Corpus?
My colleague Stéphane Beaulac raises a question that has not (it seems) had any consideration: can Omar Khadr, now back in Canada, apply for habeas corpus? Khadr can apply for a conditional release next year, but perhaps he will not have to wait that long.
Monday, 9 July 2012
Human Rights Remedies and Administrative Bodies
Unlike many (perhaps most?) other countries, Canada allows administrative bodies to make non-binding interpretations of constitutional provisions and to grant remedies for human rights violations by state actors.
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:
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.
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:
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.(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 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.
Tuesday, 15 May 2012
Separate Silos
One of the reasons offered by the concurring judges in Multani for merging administrative review and constitutional review (at least when an individualized decision was challenged) was that keeping them separate and distinct would be confusing to lower courts and litigants. That view never seemed particularly compelling to me: lawyers and judges often make and are faced with arguments that overlap and complement one another.
Interestingly, in Pridgen v. University of Calgary, where students punished for making nasty comments about a professor on a Facebook group successfully sought the quashing of the disciplinary measures against them, two of the judges on the Alberta Court of Appeal expressly avoided dealing with an argument based on the Charter, preferring instead to resolve the case on administrative law grounds. Even Madam Justice Paperny, who dealt with the Charter issue (the tricky part being whether it applies at all to universities), addressed the administrative law argument separately, agreeing that the disciplinary decision was unreasonable.
Her judgment is also notable for its treatment of the reliance by the decision-maker on hearsay evidence. She correctly noted that administrative decision-makers have more leeway than courts in permitting the introduction of hearsay, but that this leeway was exceeded in the present case:
Interestingly, in Pridgen v. University of Calgary, where students punished for making nasty comments about a professor on a Facebook group successfully sought the quashing of the disciplinary measures against them, two of the judges on the Alberta Court of Appeal expressly avoided dealing with an argument based on the Charter, preferring instead to resolve the case on administrative law grounds. Even Madam Justice Paperny, who dealt with the Charter issue (the tricky part being whether it applies at all to universities), addressed the administrative law argument separately, agreeing that the disciplinary decision was unreasonable.
Her judgment is also notable for its treatment of the reliance by the decision-maker on hearsay evidence. She correctly noted that administrative decision-makers have more leeway than courts in permitting the introduction of hearsay, but that this leeway was exceeded in the present case:
Thus in response to the students' argument that the decision did not conform to the University's own guidelines, the University was unable to demonstrate that its reasoning was cogent or that sufficient evidence existed in support of its decision, and its decision was unreasonable.[59] It is generally open to administrative tribunals to admit hearsay evidence. But the relaxation of the rules of evidence does not relieve an administrative decision‑maker of the responsibility to assess the quality of the evidence received in a reasonable manner in order to determine whether it can support the decision being made. And in a subsequent judicial review, the reviewing court must consider whether the decision is “one of a range of possible outcomes”, based on the evidence that was received and assessed by the decision‑maker. It is not an error for a reviewing judge to consider the quality of the evidence and the manner in which it was assessed in conducting that analysis.[60] The evidence on which the University relies is not merely hearsay, it is double or triple hearsay of an extremely vague nature from an unnamed source or sources. It is simply not reasonable to conclude that “injury” within the meaning of the Student Misconduct Policy has been established on the basis of the information provided to the Review Committee, and the chambers judge committed no error in reaching that conclusion.
The Charter and Administrative Adjudication
The Supreme Court of Canada has been feverishly productive in the field of administrative law since the Fall of 2011, rendering decisions on standard of review (questions of law, jurisdictional error and labour arbitrators), the right to reasons, issue estoppel, attempts to pre-empt the administrative decision-making process, and review of municipal by-laws. Plenty of grist for my mill over the coming weeks and months.
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:
But applauding this aspect of Justice Abella's reasons is not to applaud her guidance to reviewing courts:
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.
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.
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