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?

Deference on Questions of Procedural Fairness

Historically, judges have developed and enforced the rules of procedural fairness. Little or no deference is owed to procedural choices made by administrative decision-makers.

In an important new decision, however, Bich J.A. of the Québec Court of Appeal has challenged the prevailing orthodoxy. Bich J.A. taught law at my institution, the Université de Montréal, before her appointment to the bench and is a recognized authority on labour law and administrative law. She has been mooted as a possible appointee to the Supreme Court of Canada. Which is to say, her judgment in Syndicat des travailleuses et travailleurs de ADF - CSN c. Syndicat des employés de Au Dragon forgé inc., 2013 QCCA 793 demands careful attention from administrative lawyers across Canada and, indeed, beyond.

Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms

My paper for this Saturday's conference at the University of Ottawa in honour of Justice Charron is now available on SSRN. You can download it here. To whet your appetite, here is the abstract:

In interpreting the “prescribed by law” requirement contained in section 1 of the Charter of Rights and Freedoms, Canadian courts have struggled with an abundance of difficult distinctions: between law and discretion, general norms and individualized decisions, and administrative law and constitutional law.

A purposive approach assists in identifying the key functions of the “prescribed by law” requirement. First, it has both formal and substantive senses which are intimately related to the rule of law. Second, it performs an accountability function by forcing government to take responsibility for general norms that infringe Charter rights. Third, consistent with the intention of the drafters of the Charter, it provides additional protection for the individual from rights-infringing conduct by state actors.

These functions are frustrated somewhat by the analytical framework set out by the Supreme Court of Canada in Slaight Communications v. Davidson (1989). Unfortunately, in its recent decision in Doré v. Barreau du Québec (2012), the Court has only worsened the situation. It did away with the application of the proportionality test where Charter infringements can be attributed to individualized decisions of state officials, substituting instead the more deferential reasonableness test applied in judicial review of administrative action. Accordingly, a return to the pre-Doré situation, as outlined in the majority reasons of Justice Charron in Multani v. Commission scolaire Marguerite-Bourgeoys (2006), would be appropriate.

Moreover, improvements to the analytical framework within which the “prescribed by law” requirement is applied can be effected by using the tools of administrative law. Justification, transparency and intelligibility are the touchstones of reasonableness in administrative decision-making, as the Court itself has acknowledged. Accordingly, administrative decision-makers who fail to confine, structure and check their discretion by adopting “soft law” instruments, such as publicly available guidelines, risk seeing their decisions struck down as unreasonable by reviewing courts. And if decisions are unreasonable, they cannot be “prescribed by law” within the meaning of section 1 of the Charter.

Requiring the adoption of “soft law” instruments gives effect to the formal and substantive senses of the phrase “prescribed by law” by improving the accessibility and precision of administrative discretion; enhances its accountability function by allowing individuals to identify the source of rights-infringing official action and providing a focal point for debate; and hands an additional shield to the individual with which to fend off infringements of the Charter.

I will not be attending the conference in person -- my wife is due to give birth at any moment now -- but my friend Alexander Pless (Federal Department of Justice, Montréal) will be presenting it on my behalf. I welcome any comments.

Lost in Translation

I have posted previously about the Supreme Court of Canada's decision in Doré v. Barreau du Québec, 2012 SCC 12. It is a very important decision about the importance of Charter rights in administrative decision-making and judicial review. But there seems to be a difference between the French and English versions of the decision, written in English by Justice Abella.