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Opening the Doré to Proportionality:

Discretionary Administrative Decisions and the Charter

by

Trevor Richard Guy

A thesis submitted in conformity with the requirements

for the degree of Masters of Laws

Graduate Department of the Faculty of Law

University of Toronto

© Trevor Richard Guy (2015)

ii

Opening the Doré to Proportionality:

Discretionary Administrative Decisions and the Charter

Trevor Richard Guy

Master of Laws

Faculty of Law

University of Toronto

2015

Abstract

In Doré v. Barreau du Québec, 2012 SCC 12, the Supreme Court of Canada revisited the debate

over how courts should review administrative discretionary decisions implicating Charter rights.

In short, the Court held that such decisions should be reviewed using a values-based,

administrative law approach focused on proportionality, one that asks whether the decision-

maker has properly balanced the relevant Charter values and statutory objectives at issue. This

thesis will explore several problematic aspects of Dore’s reasoning and implications, and dispute

the Court’s claim that there is conceptual harmony between the traditional Oakes analysis and its

new approach to reviewing the constitutionality of administrative discretionary decisions. In

doing so, this thesis will illustrate how the Doré framework subverts the guarantee that the

Charter’s rights and freedoms are subject only to “such reasonable limits prescribed by law as

can be demonstrably justified.”

iii

Acknowledgements

I am indebted to my thesis supervisor, David Dyzenhaus, for accommodating my personal

circumstances, commenting on my work under tight timelines, and for his many questions and

editorial suggestions from which my thinking and writing benefited.

I am grateful to my patient and loving wife, Marijana, who shouldered the most important work

that allowed me to produce the following: caring for our two beautiful children.

iv

Table of Contents

I. Introduction............................................................................................................. 1

II. The Court’s decision……………………………………………………………... 4

(a) The facts: from “dialogue” to discipline…………………………………... 4

(b) The issue: the Court at the crossroads……………………………………... 6

(c) The decision: the call to proportionality…………………………………... 10

III. Double take: Doré’s methodology and implications……………………………. 13

(a) How is the new framework implemented?.................................................... 14

(b) What is the standard of review?.................................................................... 23

(c) The framework’s unworkable foundation…………………………………. 26

(d) Institutional concerns……………………………………………………… 32

IV. The justification juxtaposition: proportionality v. reasonableness…………… 36

(a) The argument: the difference in deference………………………………… 37

(b) The institutional setting of reasonableness review………………………… 41

(c) The nature of reasonableness review……………………………………… 48

(d) Comparing Oakes to administrative law proportionality………………….. 55

V. Conclusion……………………………………………………................................ 61

Bibliography………………………………………………………………………. 63

1

I. Introduction

In its recent decision in Doré v. Barreau du Québec,1 the Supreme Court of Canada reengaged

“one of the most exasperating tangles in modern public law”:2 the appropriate methodology for

reviewing administrative discretionary decisions implicating Charter3 rights. For years, the

choices appeared binary. Courts used either a structured analysis under s. 1 of the Charter and

the concomitant Oakes test,4 or an administrative law standard of review. However, after

reserving their decision for almost 14 months, the Court proffered a new approach, one

embracing the unity of public law thesis that “administrative law is also constitutional law.”5

In short, the Court held that discretionary decisions implicating Charter rights should be

reviewed using an administrative law framework but with Charter-like modification. In

particular, the Court imported a distilled form of the Oakes test into the applicable standard of

review, in this case reasonableness, determining that an inquiry into reasonableness should assess

whether the decision at issue reflects a “proportionate balancing” of the Charter rights and

statutory objectives at play.6 Drawing a further comparison to the Oakes test, the Court

emphasized that its new framework gives government actors a “margin of appreciation” in

balancing Charter rights against public objectives.7 Based on these similarities, the Court

1 2012 SCC 12 [Doré].

2 Susan Gratton & Lorne Sossin, “In Search of Coherence: The Charter and Administrative Law under the

McLachlin Court” in David A Wright & Adam M Dodek, eds, Public Law at the McLachlin Court: The First

Decade (Toronto: Irwin Law Inc, 2011) 145 at 145 [Gratton & Sossin, “In Search of Coherence”]. 3 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter].

4 [1986] 1 SCR 103 [Oakes]. For the most part, I assume that the reader, like most law students, is painfully familiar

with this test. However, it is addressed more explicitly in Part IV(d) below. 5 David Dyzenhaus, “Baker: The Unity of Public Law” in David Dyzenhaus, ed, The Unity of Public Law (Portland,

Oregon: Hart Publishing, 2004) 1 at 4. 6 Doré, supra note 1 at para. 57.

7 Ibid.

http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html

http://www.statutelaw.gov.uk/documents/1982/11/ukpga

2

asserted “conceptual harmony” between the Oakes test and its new approach, which it promised

would continue to ensure “rigorous Charter protection”8 notwithstanding its administrative law

foundation.

That claim, this thesis argues, is false. Despite resolving a significant jurisprudential debate,

Doré introduces more challenges than it puts to rest, challenges that I illustrate erode the

guarantee in s. 1 of the Charter that constitutional rights and freedoms are subject only to “such

reasonable limits prescribed by law as can be demonstrably justified.”

This thesis will begin in part Part II by examining Doré’s facts, along with the key parts of the

Court’s reasoning. Having laid this groundwork, Part III will outline a number of Doré’s

analytical shortcomings and implications. Among other things, it will detail how the Court’s

instruction to administrative decision-makers to consider Charter rights is little more than a

vague directive to articulate some form of “proportionality” or “balancing” of the competing

interests at issue, whatever that might be, an approach that undermines the normative priority

that Charter rights should receive and reduces them to just another “factor” that decision-makers

must consider. It will also explain how, making matters worse, the Court’s own application of

its new framework illustrates that such determinations involve minimal judicial oversight, an

example that lower courts are now following. Moreover, Part III will address the Court’s

reintroduction of the unworkable distinction between “law” and “discretion,” arguing that this

distinction not only threatens to confuse litigants and courts, but motivate governments to

download all Charter-based determinations to discretionary administrative actors. Lastly,

Part III will explore the institutional identity of those to whom the Court has now entrusted our

8 Ibid at para. 4.

3

Charter rights: for the most part, individuals who, to an unacceptable degree, lack the training,

capacity, and independence necessary to ensure the Charter’s effectiveness. All of these points,

I argue, undermine either the substance of s. 1’s guarantee or the legitimacy of those entrusted

with it.

Part IV will then address the Court’s central claim that there is “conceptual harmony” between

the Oakes and Doré frameworks. In Doré, the Court based this claim in the fact that both

methodologies involve the same basic concern for proportionality, and accord deference to

government actors in their determinations of whether that same basic concern has been fulfilled.

However, as Part IV will explain, while the object of the Oakes and Doré frameworks may be

identical (i.e., proportionality), there remains an important difference between the two: the lens

through which reviewing courts will scrutinize whether that object has been achieved. Post-

Doré, the Charter's application to legislation will continue to be reviewed under the more

searching standard of correctness, while discretionary Charter-based decision-making is now

reviewed under the more deferential standard of review of reasonableness. As I explain, this

difference is significant given two facets of modern reasonableness review. First, the Court’s

approach to modern judicial review is premised on the judiciary’s “deference as respect” towards

administrative decision-makers,9 a relationship aspiring to a collaborative effort in governance.

10

Second, the concept of reasonableness is not only unclear but, based on the Court’s current

doctrine and call for deference, is applied in a manner that strains to immunize, not invalidate,

9 See, generally, David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael

Taggart, ed, The Province of Administrative Law (Oxford: Oxford University Press, 1997) 279 [Dyzenhaus, “The

Politics of Deference”]. See also David Dyzenhaus, “Constituting the Rule of Law: Fundamental Values in

Administrative Law” (2002) Queen’s LJ 445 at 489-502 [Dyzenhaus, “Constituting the Rule of Law”]. 10

Mary Liston, “Governments in Miniature: The Rule of Law in the Administrative Law” in Colleen M Flood &

Lorne Sossin, eds, Administrative Law in Context (Toronto: Edmond Montgomery Publications, 2008) 39 at 66

[Liston, “Governments in Miniature”]; Suzanne Comtois, “From Deference to Governance” (2013) 26 CJALP 23 at

24 [Comtois, “From Deference to Governance”].

4

substantive administrative decision-making. These two facts, I argue, distinguish reasonableness

review from an Oakes test as a more deferential and, indeed, troubling standard of review,

particularly where fundamental rights are concerned.

This thesis briefly concludes in Part V by arguing that, in order for the Doré framework to truly

ensure “rigorous Charter protection” as the Court promises, it must require administrative actors

to justify their decisions in a manner that generally tracks the analytical criteria of the Oakes test.

Failing this, the Court may rightfully be accused of abdicating its responsibility to maintain the

rule of law.

II. The Court’s decision

(a) The facts: from “dialogue” to discipline

Doré’s facts are straightforward. The case arose when prominent criminal lawyer Gilles Doré11

appeared before Quebec Superior Court Justice Jean-Guy Boilard12

in a routine bail hearing.

Over the course of the proceeding, Boilard J. excoriated Doré with a number of derogatory

11

Doré is best known for representing motorcycle gang members. However, he received wide media attention after

being one of several criminal lawyers attacked and beaten, a series of events described as an “attack on the justice

system”: see “Gilles Dore Assault: Montreal Lawyer Badly Beaten, Association Condemns Assault”, Canadian

Press (11 July 2011) online: Huffington Post <http://www.huffingtonpost.ca/2011/11/07/gilles-dore-assault-

montreal-lawyer_n_1080408.html>. 12

Justice Boilard’s conduct has raised multiple controversies, including for his previous interactions with counsel

and recusing himself in a high-profile trial: see “Judge who quit Hells Angels case acted improperly”, Canadian

Press (8 August 2003) online: The Globe and Mail <http://www.theglobeandmail.com/news/national/judge-who-

quit-hells-angels-case-acted-improperly/article535232/>. More recently, the Quebec Court of Appeal chastised his

“intrinsically sexist attitude” toward a female defence counsel: see Graeme Hamilton, “Court finds Quebec judges’

‘intrinsically sexist attitude’ toward female defence lawyer grounds for new trial”, The National Post (5 August

2014) online: National Post <http://news.nationalpost.com/2014/08/05/court-finds-quebec-judges-intrinsically-

sexist-attitude-toward-female-defence-lawyer-grounds-for-new-trial/>

http://www.huffingtonpost.ca/2011/11/07/gilles-dore-assault-montreal-lawyer_n_1080408.html

http://www.huffingtonpost.ca/2011/11/07/gilles-dore-assault-montreal-lawyer_n_1080408.html

http://www.theglobeandmail.com/news/national/judge-who-quit-hells-angels-case-acted-improperly/article535232/

http://www.theglobeandmail.com/news/national/judge-who-quit-hells-angels-case-acted-improperly/article535232/

http://news.nationalpost.com/2014/08/05/court-finds-quebec-judges-intrinsically-sexist-attitude-toward-female-defence-lawyer-grounds-for-new-trial/

http://news.nationalpost.com/2014/08/05/court-finds-quebec-judges-intrinsically-sexist-attitude-toward-female-defence-lawyer-grounds-for-new-trial/

5

remarks for which he was later reprimanded by the Canadian Judicial Council.13

When the

matter concluded, Doré wrote a private letter to Boilard J. rejoining in kind, calling His Honour,

among other things, “pedantic,” “petty,” “loathsome,” “arrogant” and someone with “essentially

non-existent listening skills.”14

The missive would have remained private. However, Doré then

made an official complaint about Boilard J., resulting, ironically, in the letter grounding

disciplinary action against Doré. Specifically, the Disciplinary Council of the Barreau du

Québec found that Doré violated art. 2.03 of Québec’s Code of ethics of advocates,15

which

requires that “[t]he conduct of an advocate must bear the stamp of objectivity, moderation and

dignity.”16

Doré had argued that art. 2.03 was an unjustifiable infringement of his right to freedom of

expression under s. 2(b) of the Charter. The Disciplinary Council disagreed. While it found that

art. 2.03 infringed s. 2(b), the Council justified the infringement as “a limitation on freedom of

expression that is entirely reasonable, even necessary, in the Canadian legal system, where

lawyers and judges must work together in the interest of justice.”17

Moreover, the Council held,

Doré had “willingly joined a profession that was subject to rules of discipline that he knew

would limit his freedom of expression,” an agreement made in exchange for “the privileges

conferred on lawyers as members of an ‘exclusive profession’.”18

Ultimately, Doré had gone too

far: his displeasure with Boilard J. may have been justifiable, but his response “overstepped” the

13

Doré, supra note 1 at para. 14. 14

Ibid at para. 10. These are only a few choice words. 15

RRQ 1981, c B-1, r 1. 16


Ibid at para. 17. 18

Ibid.

6

profession’s “generally accepted norms of moderation and dignity.”19

Consequently, the Council

reprimanded Doré and suspended his ability to practice law for 21 days.20

The Tribunal des professions,21

Superior Court of Quebec,22

and Quebec Court of Appeal23

all

refused to interfere with the Council’s decision.

(b) The issue: the Court at the crossroads

The central issue before the Supreme Court of Canada was the constitutionality of the Council’s

decision to reprimand Doré. (He declined to challenge the Code of ethics, or his suspension’s

length.) This, in turn, raised the matter over which there was “some confusion” below,24

namely

the approach by which the Court should review the Council’s decision given that Charter rights

were implicated: should the Court use the standard mandated by s. 1 to determine whether the

state had justified an infringement of a constitutional right (i.e., the Oakes test) or, instead, the

administrative law framework normally employed to review discretionary administrative

decisions (i.e., review for “reasonableness”). For many years, and notwithstanding, or perhaps

particularly because of, its increasing attribution of Charter jurisdiction to administrative actors,

the Court was deeply conflicted over this choice. This conflict reflected the Court’s competing

19



2007 QCTP 152 (CanLII). 22

2008 QCCS 2450 (per Déziel J.). 23

2010 QCCA 24 (per Rochon, Dufresne and Léger JJ.A). 24

Doré, supra note 1 at para. 23. Citing LeBel J.’s judgement Multani v. Commission scolaire

Marguerite-Bourgeoys, 2006 SCC 6, the Tribunal des professions held that a full Oakes analysis was not required

and, instead, reviewed the Discipline Council’s decision on a standard of correctness for proportionality. On

judicial review, the Superior Court of Quebec concluded that the Tribunal had “implicitly” held that the restriction

was “justified in a free and democratic society,” satisfied that the decision satisfied the test in s. 1 of the Charter.

The Quebec Court of Appeal applied a full s. 1 analysis. See Doré at paras. 19-21.

7

constitutional imperatives to fulfil its accountability function by ensuring that administrative

action is legally authorized and, at the same time, avoid unduly interfering in the exercise of

functions that Parliament and legislatures delegated to administrative actors.25

Thus, on one hand, beginning with its decision in Slaight Communications Inc. v. Davidson,26

the Court had frequently reviewed administrative decisions implicating Charter rights using a

traditional Oakes analysis.27

Under this approach, the Court maintained a conceptual divide

between administrative law and Charter values, rejecting the “unity of public law” thesis

positing a substantive value-laden role for administrative law.28

Based on a perceived

inadequacy to deal with Charter infringements in the exercise of discretion,29

specifically the

inability to "unravel” the relevant value inquiries,30

administrative law was emptied of its ability

to control the exercise of discretion on the basis of any reference to values and, instead, trained

solely on policing the formal legal limits of “jurisdiction.”31

Notwithstanding the Court’s claim

that it did not want to “reduce” Charter rights and freedoms to “mere administrative law

principles or, at the very least, cause confusion between the two,”32

critics argued that this

25

Matthew Lewans, “Administrative Law, Judicial Deference, and the Charter” (2014) 23 Const Forum Const 19 at

21 [Lewans, “Administrative Law, Judicial Deference, and the Charter”]. See also, generally, Dyzenhaus, “The

Politics of Deference”, supra note 9; and Liston, “Governments in Miniature”, supra note 10 at 65. 26

[1989] 1 SCR 1038 [Slaight]. 27

See also Stoffman v. Vancouver General Hospital, [1990] 3 SCR 483; Dagenais v. Canadian Broadcasting Corp.,

[1994] 3 SCR 835; Ross v. New Brunswick School District No. 15, [1996] 1 SCR 825; Eldridge v. British Columbia

(Attorney General), [1997] 3 SCR 624; Eaton v. Brant County Board of Education, [1997] 1 SCR 241; Little Sisters

Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69; United States v. Burns, 2001 SCC 7; and R.

v. Mentuck, 2001 SCC 76; Multani; Greater Vancouver Transportation Authority v. Canadian Federation of

Students — British Columbia Component, 2009 SCC 31. 28

Gratton & Sossin, “In Search of Coherence”, supra note 2 at 16. 29


Geneviève Cartier, “The Baker Effect: A New Interface Between the Canadian Charter of Rights and Freedoms

and Administrative Law – the Case for Discretion”, in David Dyzenhaus, ed, The Unity of Public Law (Portland,

Oregon: Hart, 2004) 61 at 68 [Cartier, “The Baker Effect”]. 31

Cartier, “The Baker Effect”, ibid at 68-69, 73-5. See also Gratton & Sossin, “In Search of Coherence”, supra note

2 at 16. 32

Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 at para. 16.

8

“impoverished picture of administrative law” undervalued its potential to safeguard

constitutional rights as effectively as the Charter.33

On the other hand, the Court’s conception of the administrative state, along with its vision of the

relationship between administrative law and the Charter, was evolving. Beginning with its

decision in CUPE v. N.B. Liquor Corporation,34

the Court signalled a doctrinal shift from its

longstanding Diceyan conception of the separation of powers in which the executive’s role was

limited to merely applying, not fashioning, the law.35

As part of this development, the Court

appeared willing to recognize that administrative law principles could play a potent role in

assessing Charter-compliance and, thus, that it was prepared to review discretionary decisions

engaging the Charter accordingly.36

The tension between these positions was highlighted in Multani v. Commission scolaire

Marguerite-Bourgeoys,37

the Court’s last decision before Doré to consider the appropriate

methodology for reviewing discretionary decisions engaging the Charter. In that case, involving

a school board’s decision to prohibit a Sikh student from wearing his kirpan to school, the Court

33

Cartier, “The Baker Effect,” ibid at 68-9. See also Gratton & Sossin, “In Search of Coherence”, supra note 2 at

16; David Mullan, “Administrative Tribunals and Judicial Review of Charter Issues after Multani” (2006) 21 NJCL

127; and Robert Leckey, “Prescribed by Law/Une règle de droit” (2007) 45 Osgoode Hall LJ 571 [Leckey,

“Prescribed by Law”]. 34

[1979] 2 SCR 227. 35

See, generally, Dyzenhaus, “The Politics of Deference,” supra note 9. See also David Dyzenhaus & Evan Fox-

Decent, “Rethinking the Process/Substance Distinction: Baker v. Canada” (2001) 51 UTLJ 193 at 240 [Dyzenhaus

& Fox-Decent, “Rethinking the Process/Substance Distinction”]; Liston, “Governments in Miniature”, supra note 10

at 39-84. 36

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817; Trinity Western University v.

British Columbia College of Teachers, 2001 SCC 31; Chamberlain v. Surrey School District No. 36, 2002 SCC 86;

Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2; Pinet v. St. Thomas Psychiatric Hospital,

2004 SCC 2; Lake v. Canada (Minister of Justice), 2008 SCC 23; Canada (Prime Minister) v. Khadr, 2010 SCC 3;

Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23; and Németh v. Canada

(Justice), 2010 SCC 56. 37

2009 SCC 31 [Multani].

9

rendered three sets of concurring reasons, each employing different frameworks for assessing the

constitutionality of the board’s decision. Speaking for the majority, Charron J. applied a formal

Oakes test,38

concerned that constitutional law standards would otherwise be “dissolved” into

administrative law ones.39

Though arriving at the same result, Abella and Deschamps JJ. held

that the case was “more appropriately decided by recourse to an administrative law review,”40

concluding that the Oakes test was developed to assess “legislative policies” (i.e., “laws”), not

individualized decisions.41

For this reason, they found that the general principles of judicial

review should apply to all exercises of discretion. Lastly, foreshadowing the Court’s judgment

in Doré, LeBel J. reached the same result by applying a modified Oakes test to the board’s

determination, reasoning that “[i]n the case of an individualized decision made pursuant to

statutory authority, it may be possible to dispense with certain steps of the analysis.”42

For him,

the issue became “one of proportionality or, more specifically, minimal limitation of the

guaranteed right, having regard to the context in which the right has been infringed.”43

Standing at the same crossroads in Doré, the Court framed the issue as a choice between two

general approaches.44

Speaking for the Court, Abella J. described the fork in the road as follows:

Today, the Court has two options for reviewing discretionary administrative

decisions that implicate Charter values. The first is to adopt the Oakes

framework, developed for reviewing laws for compliance with the Constitution. 38

Ibid at paras. 42-79. 39





Ibid. 44

For the sake of convenience, I have also discussed the central issue as a choice between two analytical

frameworks. However, I recognize that, at the time, the Court had also decided cases in which it had taken a

blended approach, segmenting the issues for review under either constitutional or administrative law frameworks:

see, for example, Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1. The Court recently

cautioned against such an approach: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC

36.

10

This undoubtedly protects Charter rights, but it does so at the risk of undermining

a more robust conception of administrative law. In the words of Prof. Evans, if

administrative law is bypassed for the Charter, “a rich source of thought and

experience about law and government will be overlooked.”

The alternative is for the Court to embrace a richer conception of administrative

law, under which discretion is exercised “in light of constitutional guarantees and

the values they reflect”…Under this approach, it is unnecessary to retreat to a s. 1

Oakes analysis in order to protect Charter values. Rather, administrative

decisions are always required to consider fundamental values. The Charter

simply acts as “a reminder that some values are clearly fundamental and…cannot

be violated lightly.”45

(c) The decision: the call to proportionality

In essence, Abella J. chose both options. In her view, it was “possible to reconcile the two

[constitutional and administrative law] regimes in a way that protects the integrity of each.”46

The solution: a distilled form of the Oakes test that worked “the same justificatory muscles” of

balance and proportionality.47

As she suggested in Multani, Abella J. held that a formulaic Oakes test should be reserved for “a

law or other rule of general application.”48

Thus, she held, the test to review the constitutionality

of individualized decisions “must necessarily be adjusted.”49

Her adjustment was deceptively

simple. Building on LeBel J.’s concurring reasons in Multani, Abella J. held that courts

reviewing administrative decisions50

implicating Charter rights should apply the reasonableness

45

Doré, supra note 1 at paras. 34-35. 46

Ibid at para. 4 47

Ibid at para. 5. 48


Ibid at para. 4. 50

I recognize that Doré involved an adjudicative administrative decision and, therefore, its central holding might be

limited to that context. However, Abella J. also appears to address administrative decision-makers implicating

Charter rights more generally, for example at para. 24, suggesting Doré has broad application. The same query

arose after Dunsmuir v. New Brunswick, 2008 SCC 9. Because Dunsmuir involved an adjudicative administrative

11

standard to ensure that such decisions entail the same justificatory exercise. Put another way,

Abella J. turned Oakes’ normative engine – proportionality – into the central criterion of

reasonableness.51

As she explained:

In the Charter context, the reasonableness analysis is one that centres on

proportionality, that is, on ensuring that the decision interferes with the relevant

Charter guarantee no more than is necessary given the statutory objectives. If the

decision is disproportionately impairing of the guarantee, it is unreasonable. If,

on the other hand, it reflects a proper balance of the mandate with Charter

protection, it is a reasonable one.52

Abella J. emphasized that this approach would not erode the Charter’s rights and freedoms. To

the contrary, affirming that “the protection of Charter guarantees is a fundamental and pervasive

obligation, no matter which adjudicative forum is applying it,” she claimed that her new

framework would still ensure “rigorous Charter protection.”53

Abella J. also outlined a two-fold process for how administrative decision-makers should apply

Charter values in the exercise of statutory discretion. First, she held, the decision-maker must

identify and consider the relevant statutory objectives.54

Next, the decision-maker should ask

“how the Charter value at issue will best be protected in view of the statutory objectives,”55

this

decision, doubt existed as to whether its revised standard of review framework applied to all administrative decision

makers: see, for example, Toussaint v. Canada (Attorney General), 2011 FCA 213 at para. 19. The Court recently

confirmed that it generally does: Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40 at

paras. 53-54. That said, the framework still does not apply to decisions made in a “legislative capacity”: see, for

example, Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 (concerning the judicial review of a

municipal taxation by-law) and Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64

(concerning regulations passed by a provincial cabinet). 51

Sheila Wildeman, “Pas de Deux: Deference and Non-Deference in Action” in Colleen M. Flood and Lorne Sossin,

eds, Administrative Law in Context, 2d ed, (Toronto: Emond Montgomery, 2013) 323 at 359 [Wildeman, “Pas de

Deux”]. 52


Ibid at para. 4. 54


Ibid at para. 57.

12

being the “the core of proportionality exercise.”56

On judicial review, she explained, “the

question becomes whether…the decision reflects a proportionate balancing of the Charter

protections at play.”57

Here, Abella J. saw “conceptual harmony” between reasonableness

review and the Oakes framework since both approaches “contemplate giving a ‘margin of

appreciation,’ or deference, to administrative or legislative bodies in balancing Charter values

against broader objectives.”58

Applying this modified reasonableness standard to the facts, Abella J. upheld the Council’s

decision. The necessary balance, she held, was between the “fundamental importance of open,

and even forceful criticism of our public institutions,” and “the need to ensure civility within the

profession.”59

After reviewing Doré’s invective, Abella J. underscored the Council’s conclusion

that Doré had “overstepped” the profession’s “generally accepted norms of moderation and

dignity.”60

She then offered the brusque conclusion that the Council’s decision “cannot be said

to represent an unreasonable balance of Mr. Doré’s expressive rights with the statutory

objectives.”61

56



Ibid. 59



Ibid at para. 71.

13

III. Double take: Doré’s methodology and implications

Doré is an alluring conceit. Torn between two methodologies, the Court conflates them,

integrating “the spirit of s. 1 into judicial review.”62

In doing so, Doré purports to offer the best

of both methodological worlds in assessing the Charter-compliance of discretionary decision-

making, namely effective rights protection and contextual sensitivity. More impressively, the

decision is of a piece with L'Heureux-Dubé J.’s celebrated judgment in Baker v. Canada

(Minister of Citizenship and Immigration).63

Both envision greater control of discretionary

decision-making by importing substance and values into the administrative law concept of

reasonableness, reconceive the standard of review as something more resembling the Charter,

and, ultimately, use a requirement of justification to foster the legitimate use of public

authority.64

In this sense, both decisions reflect the Court’s disavowal of a formal conception of

the separation of powers in favour of a cooperative “culture of justification”65

– that is, as Chief

Justice McLachlin has explained, a culture in which the “exercise of public power is only

appropriate where it can be justified to citizens in terms of rationality and fairness.”66

As such,

Doré promises to resolve a significant jurisprudential debate comprehensively and progressively.

62

Ibid at para. 57. Then again, perhaps this development was entirely obviously given that the concept of

proportionality has its roots in administrative law: see Moshe Cohen-Eliya & Iddo Porat, Proportionality and

Constitutional Culture (Cambridge: Cambridge University Press, 2013) at 24 [Cohen-Eliya & Porat,

Proportionality]; Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge:

Cambridge University Press, 2012) at 177 [Barak, Proportionality]. 63

[1999] 2 SCR 817. 64

Cartier makes these points with respect to Baker in “The Baker Effect”, supra note 30 at 73, 74 and 77,

respectively. See also Geneviève Cartier, “Administrative Law: Twenty Years After the Charter” (2003) R du B

197 at 226 [Cartier, “Administrative Law: Twenty Years After the Charter”]. 65

See, generally, Dyzenhaus, “The Politics of Deference”, supra note 9. 66

The Honourable Justice Beverly McLachlin, “The Role of Administrative Tribunals and Courts in Maintaining the

Rule of Law” (1999) 12 CJALP 171 at 174-5. See also David Dyzenhaus, “Dignity in Administrative Law: Judicial

Deference in a Culture of Justification”, The 23rd Annual McDonald Lecture in Constitutional Studies (2012) Rev

Const Stud 87 at 110-1 [Dyzenhaus, “Dignity in Administrative Law”]; and, generally, “Law as Justification:

Etienne Mureinik’s Conception of Legal Culture” (1998) 14 SAJHR 11 [“Law as Justification”].

14

But Doré leaves much to be desired. As this section explains, the Court’s proposed framework,

along with its initial application, presents a number of practical and doctrinal problems

undermining the guarantee in s. 1 of the Charter that constitutional rights and freedoms are

subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a

free and democratic society.”

(a) How is the new framework implemented?

To begin, Doré articulates a confusing message about the interests that administrative decision-

makers are required to balance. In particular, the decision vacillates between discussion of

Charter rights and Charter values, referencing each at almost equal turns. This is odd. Given

that Doré’s claim was based on the guarantee of freedom of expression in s. 2(b), the Court had

no need to extend its language beyond talk of constitutional rights. As a result, commentators

have wondered what this extension was meant to convey or, perhaps, portend.67

Is the Court

gesturing towards a more expansive role for administrative law to bridle executive action, one

based on the inchoate substratum of Charter values? If so, how exactly should administrative

actors use the Charter values currently identified, along with any others the Court (or they, if

permitted) might recognize?

67

Lorne Sossin and Mark Friedman, “Charter Values and Administrative Justice” (2014) online:

<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2389809> [Sossin & Friedman, “Charter Values”]; David

Mullan, “Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action – The

Top Fifteen” (2013) 42 Advocates’ Q 1 at 54 [Mullan, “Unresolved Issues”]; Wildeman, “Pas de Deux”, supra note

51 at 362; Evan Fox-Decent and Alexander Pless, “The Charter and Administrative Law: Cross-Fertilization or

Inconsistency?” in Colleen M Flood and Lorne Sossin, eds, Administrative Law in Context, 2d ed, (Toronto: Emond

Montgomery, 2013) 407 at 433 [Fox-Decent & Pless, “The Charter and Administrative Law”].

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2389809

15

Charter values might be important in a number of different contexts. Administrative decision-

makers might use Charter values, for example, to inform the content of Charter rights,68

develop

regime-specific doctrines,69

or make procedural or evidentiary rulings.70

Indeed, such

applications may provide those statutorily prohibited from applying the Charter with a

convenient workaround.71

In circumstances in which Charter rights do not apply, Charter

values may also serve as an effective means to ensure that government decision-makers act

“compassionately, in a way responsive to the individuals they serve.”72

In this respect, Charter

values should have no less purchase in shaping the contours of public administration than the

content of the common law.73

And Charter values may even play a limited role in how

administrative decision-makers interpret their home statutes.74

Although the Court has

repeatedly maintained that the Charter should only play such a role in the rare circumstance of a

68

Gosselin v. Québec (Attorney General), [2002] 4 SCR 429 at para. 202 per Bastarache J. 69

I am thinking here of Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care

Professionals, 2011 SCC 59, in which the Court held that labour arbitrators may properly develop doctrines and

fashion remedies appropriate in their field, drawing inspiration from, among other things, general legal principles.

For that reason, the Court applied a standard or reasonableness to an arbitrator’s application of the equitable doctone

of estoppel. 70

See, for example, RJW (Re), 2014 ABTSB 274, in which the Alberta Transportation Safety Board made an

evidentiary ruling on the basis of Charter considerations. See also E. Grof Livestock Ltd. v. Canada (Canadian

Food Inspection Agency), 2014 CART 11, and Tao v. Canada (Canada Border Services

Agency), 2014 CART 6, in which the Canada Agricultural Review Tribunal considered Charter values in

developing the content of procedural fairness. 71

RJW (Re), 2014 ABTSB 274. Although the Board recognized that it was prohibited by Alberta’s Administrative

Procedures and Jurisdiction Act, RSA 2000, c. 43 from applying the Charter, it held, at para. 49, that it had a duty

to consider the content of the duty of fairness with reference to Charter values. 72

Angela Cameron and Paul Daly, “Furthering Substantive Equality Through Administrative Law: Charter Values

in Education” (2013) 63 Sup Ct L Rev 169 at 184-5 [Cameron & Daly, “Furthering Substantive Equality”]. 73

See, for example, R. v. Salituro, [1991] 3 SCR 654; Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130

at para. 82 et seq.; M. (A.) v. Ryan, [1997] 1 SCR 157 at para. 23; R.W.D.S.U., Local 558 v. Pepsi-Cola Canada

Beverages (West) Ltd., 2002 SCC 8; WIC Radio Ltd. v. Simpson, 2008 SCC 40 at para. 16; Grant v. Torstar Corp.,

2009 SCC 61 at para. 44. 74

Cameron & Daly, “Furthering Substantive Equality”, supra note 73 at 190-1; Sossin & Friedman, “Charter

Values”, supra note 68 at 24.

16

“genuine ambiguity,”75

a principle it has reaffirmed since Doré,76

the possibility nonetheless

remains.

In this context, however, the Court’s reference to Charter values is best seen as a distracting

stand-in for constitutional rights.77

On this reading, the Court’s reference to values, along with

its emphasis on proportionality, is consistent with what Grégoire Webber describes as “the

received approach” to the limitation of rights. Under this approach, to which courts have

adhered “almost without exception,”78

rights are conceived not as “rules or standards apt to be

applied, but rather principles to be optimized.”79

This conception flows from the fact that bills of

rights, like the Charter, “proceed largely in abstractions” on “grand formulations.”80

In this

respect, the received approach “sees rights everywhere but leaves rights controlling nowhere.”81

In a culture of justification, this is particularly appealing since the expansion of rights resulting

from their rebranding as values consequently expands the scope of government action that must

be justified.82

But with this benefit comes a difficulty. The indeterminate nature of rights

“incessantly confronts the complex range of ends pursued by free and democratic societies.”83

75

Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 62. However, the Charter may, it seems,

always inform the interpretation of human rights legislation given that both share common objectives and thus

should be interpreted congruently: Dallaire v. Les Chevaliers de Colomb, 2011 HRTO 639 at para. 22. 76

R. v. Clarke, 2014 SCC 28 at para. 12. 77

Audrey Macklin, “Charter Right or Charter-Lite? Administrative Discretion and the Charter” (2014) 67 Sup Ct L

Rev (2d) 561 at 562-3 [Macklin, “Charter Right or Charter-Lite”]. Professor Macklin suggests that the Court’s

sematic toggling between values and rights is linked to the analytical framework by which the latter may be limited

using the concept of proportionality. I agree. However, unlike Professor Macklin, I offer a normative account. 78

Grégoire CN Webber. “Rights and Rule of Law in the Balance” (2013) 129 Law Q Rev 399 at 409 [Webber,

“Rights and the Rule of Law”]. Webber discusses the same concept in “On the Loss of Rights” in Grant Huscroft,

Bradley W Miller & Grégoire Webber, eds, Proportionality and the Rule of Law: Rights Justification, Reasoning

(New York, Cambridge University Press, 2014) 123; “Proportionality, Balancing, and the Cult of Constitutional

Rights Scholarship” (2010) 23 Can JL & Jur 179; and “Constituting Rights by Limitation” (2008) online:

<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1322812> [Webber, “Constituting Rights by Limitation”]. 79

Webber, “Rights and the Rule of Law”, ibid at 409. 80

Ibid at 3-4. 81

Webber, “Constituting Rights By Limitation”, supra note 78 at p. 1. 82

Cohen-Eliya & Porat, Proportionality, supra note 63 at 118-9. 83

Webber, “Rights and the Rule of Law”, supra note 78 at 409.

17

As a result, the received approach necessitates the ability of those applying it to negotiate

between conflicting values or principles. The solution is the principle of proportionality, through

which it conducts this negotiation, again using this same currency of values, interests, or

principles.84

This is precisely the model embodied in the Oakes test.

Turning to Doré, this account synchronizes Charter values with Charter rights, rationalizing

their repeated exchange. In short, the Court uses the concept of Charter rights qua values to

enhance the Charter’s guarantees by reading them as expansively as possible. At the same time,

the Court recognizes that these values qua rights must also give way to justified limitations,

based on proportionality and balancing, to accommodate good government. Context is key, as

always in administrative law and with the Court’s decisions. In Doré’s context – i.e., resolving

the inevitable clash between constitutional rights and statutory imperatives – is it difficult to see

how the Court’s repeated toggling between Charter rights and Charter values can have any other

meaningful reading.

Multiple courts have applied Doré with this same understanding. For example, in Ktunaxa

Nation v. British (Forests, Lands and Natural Resources),85

the British Columbia Supreme Court

considered a claim mounted by an Aboriginal Band challenging the proposed construction of a

ski resort on Crown land. The Band alleged that the resort would be erected on a sacred site

inhabited by the Band’s Grizzly Bear Spirit, causing the Spirit to leave and, with it, the Spirit’s

“assistance and guidance.”86

Thus, the Band claimed, the resort’s construction would infringe its

freedom of religion under s. 2(a) of the Charter. Dismissing the claim, the court found that the

84

Webber, “Rights and the Rule of Law”, ibid at 410-11. 85

2014 BCSC 568. 86

Ibid at para. 17.

18

Band failed to satisfy the strictures of the Supreme Court’s most recent articulation of the test for

an infringement of s. 2(a).87

The court might have easily relied on any number of Charter values

to facilitate the band’s claim. In Oakes, for example, Dickson C.J. identified the values of

“accommodation for a wide variety of beliefs” and “respect for cultural and group identity” as

the genesis for the rights and freedoms guaranteed by the Charter,88

values that could have easily

applied to the facts at bar. Similarly, in Alberta v. Hutterian Brethren of Wilson Colony,89

the

Supreme Court linked the right to freedom of religion to the values of liberty, human dignity,

equality, autonomy, and the enhancement of democracy,90

any one of which might have also

aided the Band’s claim. Instead, the British Columbia Supreme Court’s inquiry ended with the

Band’s failure to fit itself within the jurisprudential confines of s. 2(a).

This same approach was adopted by the Quebec Court of Appeal in Québec (Procureur général)

c. Loyola High School, currently under reserve at the Supreme Court of Canada and also

involving s. 2(a), 91

as well as by the Federal Court in a case involving claims based on freedom

of expression and freedom of association.92

Other recent cases have also held that where a

statutory regime or common law doctrine already includes the type of balancing and

proportionality built into the Oakes test, neither Doré nor the concept of Charter values adds any

substantive element to the requisite analysis.93

87


Oakes, supra note 4 at para. 64. 89

2009 SCC 37 [Hutterian Brethren]. 90


2012 QCCA 2139 at paras. 162-175. The case was argued before the Supreme Court on March 24, 2014. The

Court’s decision is under reserve. 92

Najafi v. Canada (Public Safety and Emergency Preparedness), 2013 FC 876 at paras. 21-22, 39-51. 93

Gichuru v. The Law Society of British Columbia, 2014 BCCA 396 at paras. 107-8 (involving a complaint that

British Columbia’s Human Rights Code infringed s. 15 of the Charter, which the Court of Appeal dismissed on the

basis that the Charter values at issue were “substantially equivalent” to the Code’s objectives); Mahjoub (Re), 2013

19

Still, assuming that Charter rights and Charter values are in fact coextensive, that is only one

mystery solved. Another remains: how exactly should administrative actors balance

constitutional guarantees against competing statutory objectives to determine proportionately?

Before Doré, decision-makers had the rigours of the Oakes test to guide them. In its place, they

now have the vague instruction to identify the relevant statutory objectives and “balance” them

with the operative Charter value(s).94

This directive raises two basic problems.

The first is the Court’s ambivalent, if not contradictory, description about the extent to which

Oakes figures in the analysis. In one breath, the Court jettisons the applicability of a formal s. 1

analysis, opting for a framework premised on the mere “balancing” of Charter and statutory

interests. In the next, the Court underscores the “conceptual harmony” between its new

framework to the Oakes test,95

suggesting the two are the same. Which is it – are they the same

or different? This incongruity can be expressed in another way. On one hand, the Court adopts

an approach based on reasonableness review and deference to administrative decision-makers,

fearing that, otherwise, an approach based on correctness review (i.e., Oakes) will turn every

case involving Charter rights into a de novo hearing on judicial review.96

On the other hand, the

Court assuages those who fear the consequent dilution of fundamental rights and freedoms by

asserting that its approach will ensure “rigorous Charter protection” on judicial review. Again,

both positions are incompatible.97

FC 10 at 16 (review of conditions for release, which requires a court to consider whether the conditions are a

proportionate response to the nature of the applicant’s threat to national security), 94


Ibid at para. 6. 96


Hoi L Kong, “Doré, Proportionality and the Virtues of Judicial Craft” (2013) 63 Sup Ct L Rev (2d) 501 at 509.

20

Thus, even from the outset it is not clear what the Court means when it directs discretionary

decision-makers applying Charter values to “balance” the competing interests at issue, or how

such determinations will be reviewed. Is the ultimate aim something resembling the Oakes test,

or a more flexible approach allowing decision-makers more leeway? This uncertainty, in turn,

raises a concern over s. 1’s requirement that any limits that administrative discretionary decisions

impose on fundamental rights be “reasonably and demonstrably justified.” Specifically, to the

extent that the Court’s new framework, and more accurately the modified form of reasonableness

review now applicable in the Charter context, adulterates the standard established under Oakes,

s. 1’s guarantee is diminished. This is directly related to the second basic problem with the

Court’s new methodology.

The second basic problem is the “issue of incommensurability:” put briefly, how exactly does

one balance competing principles that have no common denominator? 98

Rights or values are not

“intrinsically of a determinate or ranked weight.”99

Rather, they are opaque and aspirational

formulations which are not “wholly worked out in large measure.”100

So, too, are the statutory

objectives against which they must be pitted. How can both be put on a scale?101

Attempting to

weigh them raises a number of questions.102

For example, how should tribunals accord “weight”

to any particular interest? How might this “weight” be affected by contextual factors? Must

Charter claimants always be viewed in isolation or might they also be seen as representatives of

98

Barak, Proportionality, supra note 62 at 482. 99

Wildeman, “Pas de Deux”, supra note 51 at 362. 100

Webber, “Rights and the Rule of Law”, supra note 78 at 402. 101

In Bendix Autolitet Corp. v. Midwesco Enterprise Inc. 486 US 888 (1988), Justice Scalia observed at 897: [t]he

scale analogy is not really appropriate, since the interests on both sides are incommensurate. It is more like judging

whether a particular line is longer than a particular rock is heavy.” 102

In addressing the concept of proportionality generally, Webber asks many of these questions in “Rights and the

Rule of Law”, supra note 78 at 14, suggesting that “the repeated emphasis on the ‘structure’ of balancing can be

taken to be an oblique way of acknowledging that balancing and proportionality provide little ‘substantive’

guidance.”

21

a class of other claimants? What happens when there are more than two competing interests that

must be balanced? What if the interests being balanced “weigh” the same? And might the

calculus change depending on the nature of the interest engaged, the decision-maker’s identity,

or any other circumstances?103

The Court leaves all of these questions for administrative

decision-makers to resolve. As Sossin and Friedman charitably put it, Doré proffers a “skeletal

approach that needs to be fleshed out in the diverse contexts of administrative law.”104

In itself, this may not be an issue. Quite the opposite. Such an approach may reinforce a model

of the relationship between the judiciary and the administrative state based on a cooperative

culture of justification, allowing administrative decision-makers to develop “the law” in a

number of respects. However, it aggravates the concern over s. 1’s requirement for

“demonstrably justified” limits on Charter rights for two reasons.

First, in a certain light, the Court’s directive to “balance” competing interests is so elastic that

decision-makers can apply it as loosely or carelessly as they want, even in a manner that fails to

accord Charter rights any real weight beyond a passing reference. In fact, this is precisely how

many courts have applied Doré, as illustrated in Part IV(d), below. Obviously, such an approach

betrays the normative priority that constitutional rights should receive within the context of

s. 1,105

reducing them to simply just another factor that administrative actors have to “consider”

103


Sossin & Friedman, “Charter Values”, supra note 68 at 10. 105

United States of America v. Cotroni, [1989] 1 SCR 1469 at pp. 1489-90 per La Forest, speaking for a majority:

In the performance of the balancing task under s. 1 it seems to me, a mechanistic approach must be

avoided. While the rights guaranteed by the Charter must be given priority in the equation, the

underlying values must be sensitively weighed in a particular context against other values of a free

and democratic society sought to be promoted by the legislature

22

when rendering decisions.106

That is to say, although s. 1’s requirement for “demonstrably

justified” limits assumes the priority of the rights they abrogate, the Court’s methodology

permits decision-makers to casually dismiss or “explain away” rights without being required to

justify their limitation in the sense mandated by Oakes or in any other sense connoted by s. 1.107

Second, and extending on this first point, Doré’s approach is particularly disconcerting given

that the fox is now firmly in charge of the hen house: under Doré, administrative decision-

makers receive deference concerning their treatment of Charter rights. True, decision-makers

must provide reasons for their decisions, an exercise that should expose any errant thumbs on the

scales balancing constitutional and statutory exigencies. But the requirement of reasons is not a

consummate safeguard. With the analytical discipline demanded by Oakes cast away, all that

appears to matter is that decision-makers articulate some “proportionality” or “balancing” of the

interests at issue, whatever that might be.108

More to the point, and moving from the object of

reasonableness review (i.e., proportionality) to its verb (i.e., a deferential process of scrutinizing

decision-making), the standard of review applied to such determinations appears to exact little

justification. As the next sections outlines, Abella J.’s application of her own framework

establishes an unsettling precedent that immediately exposes the shakiness of her claim that the

Doré framework offers “rigorous Charter protection.” In fact, Abella J.’s minimal scrutiny of

the Disciplinary Council’s decision is consistent with the Court’s modern approach to

106

Macklin, “Charter Right or Charter-Lite”, supra note 78 at 581. 107

In her thesis addressing the implications of Doré, Sarah RH Parker describes this as the Court permitting “a box-

ticking approach by decision-makers to the consideration of relevant Charter guarantees”: “Discretionary

Administrative Decisions and the Charter of Rights: Doré and Determining the “Proportionate” Balance (LL. M.

Thesis, University of British Columbia, Faculty of Graduate Studies and Postdoctoral Studies, 2013) at 144 online:

<https://circle.ubc.ca/bitstream/handle/2429/45625/ubc_2014_spring_parker_sarah.pdf?sequence=3> [Parker,

“Discretionary Administrative Decisions and the Charter”]. 108

Paul Daly, “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter

of Rights and Freedoms “ (2013) 60 Sup Ct L Rev (2d) 60 at 75 [Daly, “Prescribing Greater Protection”].

https://circle.ubc.ca/bitstream/handle/2429/45625/ubc_2014_spring_parker_sarah.pdf?sequence=3

23

reasonableness review which, as Part IV explains, is one that strives to stand up, not strike down,

deficient reasoning. Added to the Court’s uncertain direction for achieving the proper “balance,”

the application of this approach to reasonableness review provides administrative decision-

makers with even greater room to avoid the strictures of s. 1 ordinary mandated under an Oakes.

(b) What is the standard of review?

Decision-makers left in a methodological lurch might turn to the Court’s discussion on, and

application of, the standard of review in order to reverse engineer further guidance. There,

unfortunately, they will find only additional confusion. Although the Court was clear in

directing administrative actors to aim for proportionality, it offered mixed messages about

evaluating whether that target has been hit.

Consider the Court’s discussion of the appropriate standard of review. The Court obviously

endorsed the application of the reasonableness standard to assess whether administrative

decisions violate the Charter.109

In addition to wanting the judiciary to avoid “retrying” cases

involving the implication of Charter rights,110

the Court repeatedly trumpeted the expertise that

administrative decision-makers offer in connection with their statutory mandates and in applying

the Charter to a given set of facts.111

Accordingly, the Court held, decision-makers should have

a “margin of appreciation” is assessing Charter claims112

and, likewise, their decisions should

109

This, of course, assumes that the reasonableness review would ordinarily apply. It is possible that, despite the

presumption of reasonableness review applying, the standard of review could be correctness. 110


Ibid at para. 35-6, 46-48, 54 112

Ibid at para. 57.

24

stand so long as they fall “within a range of possible, acceptable outcomes.”113

This language of

deference suffuses the Court’s judgment.

Nevertheless, the Court also invokes a more invasive form review, at least insofar as the object

of reasonableness (i.e., proportionality) is concerned, suggesting that curial deference might be

contingent on decision-makers navigating important analytical turns. For example, the Court

provides that, in the Charter context, the reasonableness analysis centres on proportionality, a

concept it defines as “ensuring that the decision interferes with the relevant Charter guarantee no

more than is necessary given the statutory objective,”114

and asking “how the Charter value at

issue will best be protected in view of the statutory objectives”115

[emphasis added]. These

comments imply that decision-makers encroaching protected rights must satisfy a minimal

impairment requirement. This would make sense given the Court’s assertion that the Oakes test

and the reasonableness standard work “the same justificatory muscles.”116

(Then again, if

Doré’s methodological purpose was to jettison the Oakes test, perhaps not.117

) In the same vein,

the Court opined that, on judicial review, a determination on proportionality will be found to be

reasonable if the decision-maker “properly balanced” the interests at issue.118

Again, far from

suggesting that deference is the order of the day under Doré, this language implies that reviewing

courts might be free to reweigh the competing interests at stake in order to ensure that decision-

makers have in fact struck a proper balance.119

Indeed, as Professor Macklin observes, “it is

113




Doré, supra note 1 at para 5. 117

Daly, “Prescribing Greater Protection”, supra note 108 at 85. 118


Colleen M Flood & Jennifer Dolling, “An Introduction to Administrative Law: Some History and a Few

Signposts for a Twisted Path” in Colleen M Flood and Lorne Sossin, eds, Administrative Law in Context, 2d ed,

25

difficult to conceive of a proportionality analysis that does not inquire into the appropriate

weighting of the Charter right against other interests”120

[emphasis added]. Likewise, Evan Fox-

Decent and Alexander Pless observe that “[t]esting whether an appropriate balance has been

struck necessarily involves an inquiry into the weight accorded to countervailing considerations”

[emphasis added].121

Problematically, however, such an approach would be at odds with the

Court’s repeated instruction that judicial review courts should avoid this very type of

reweighing.122

Adding further confusion, Abella J.’s application of the standard exhibits no concern for either

proportionality or balancing. Turning to the facts, Abella J.’s engagement with the Disciplinary

Council’s decision is a “brief rehearsal,”123

one involving little more than a parade of Doré’s

intemperate language. After this cursory review, she reiterates the Council’s conclusion that the

“generally accepted norms of moderation and dignity were ‘overstepped.’”124

She then follows

this with her judgment’s last paragraph and her only assessment of the reasonableness

(i.e., proportionality) of the Council’s decision:

In the circumstances, the Disciplinary Council found that Mr. Doré’s letter

warranted a reprimand. In light of the excessive degree of vituperation in the

letter’s context and tone, this conclusion cannot be said to represent an

unreasonable balance of Mr. Doré’s expressive rights with the statutory

objectives.125

(Toronto: Emond Montgomery, 2013) 1 at 33 [Flood & Dolling, “An Introduction to Administrative Law”]; Mary

Liston, “Governments in Miniature”, supra note 10 at 80. 120

Audrey Macklin, “Standard of Review: Back to the Future?” in Colleen M Flood and Lorne Sossin, eds,

Administrative Law in Context, 2d ed, (Toronto: Emond Montgomery, 2013) 279 at 318 [Macklin, “Standard of

Review”]. 121

Fox-Decent & Pless, “The Charter and Administrative Law”, supra note 68 at 433. 122

Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42 at para. 30; Agraira v. Canada

(Public Safety and Emergency Preparedness), 2013 SCC 36 at para. 91 [Agraira]; Canada (Citizenship and

Immigration) v. Khosa, 2009 SCC 12 at paras. 59, 64; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 at

para. 25. 123



Ibid at para. 71.

26

Perplexingly, Abella J. fails to take up the central inquiry of her own proposed framework, that

on judicial review “the question becomes whether…the decision reflects a proportionate

balancing of the Charter protections at play?”126

She leaves a number of questions answered.

For example, how did a reprimand, as opposed to, say, a warning, ensure that the Council’s

decision interfered with Doré’s freedom of expression “no more than is necessary,” key words

she used elsewhere to sell the approach?127

Why could a less intrusive disciplinary measure not

satisfy the Council’s concerns for professional civility? Why did the fact that the Doré’s letter

was sent privately not feature in the analysis?128

Despite Abella J.’s talk of balance and

proportionality, those supposedly controlling ideas are absent from her analysis.129

As a result,

her decision establishes a precedent that largely removes s. 1’s justificatory hurdle for

administrative decision-makers. To the extent it does, it again raises the obvious criticism that

Doré’s weakens the standard that Oakes ordinarily demands.

(c) The framework’s unworkable foundation

Doré’s dilution of the “rigorous Charter protection” otherwise afforded under the Oakes test is

even more problematic given its normative underpinning. Specifically, whether judicial review

courts employ Oakes (i.e., “correctness”) or Doré (i.e., “reasonableness”) now rests on the

unworkable distinction between “law” and “discretion.” As explained below, this distinction not

only threatens to confuse litigants and courts, but, for a number of reasons, creates an incentive

126


Ibid at para s. 6, 7. 128

Daly, “Prescribing Greater Protection”, supra note 108 at 74. 129

Lewans, “Administrative Law, Judicial Deference, and the Charter”, supra note 25 at 16, argues that Abella J.’s

assessment of proportionality was errant in failing to examine whether Doré’s penalty was proportionate and,

instead ask whether there were reasonable, Charter compatible grounds, for punishing Doré. But that was the very

issue – he didn’t take issue with the length or the sentence, but rather the decision to reprimand.

27

for governments to ensure that Doré receives the broadest application possible by delegating all

Charter-engaging determinations to discretionary actors. All of these potential consequences

undermine the functions served by s. 1’s requirement that Charter-infringing conduct be

“prescribed by law.”

To repeat, the Charter’s guaranteed rights and freedoms are, pursuant to s.1, “subject only to

such reasonable limits prescribed by law as can be demonstrably justified in a free and

democratic society.” The phrase “prescribed by law” serves as an important threshold.

Government action that is not “prescribed by law” – that is, not anchored in statutory authority –

cannot be upheld. This threshold serves three important functions. It furthers the rule of law

(i.e., by ensuring that conduct infringing constitutional rights is statutorily authorized and cannot

be used arbitrarily), holds government accountable for its actions, and makes the infringement of

Charter rights more difficult to maintain.130

In Slaight, the Court first considered whether an exercise of discretion is a limit “prescribed by

law” and, if so, how to determine whether such decisions are Charter-complaint. The Court

recognized that discretionary decisions might implicate Charter rights in one of two ways:131

discretionary orders might be made pursuant to legislation which “confers, either expressly

or by necessary implication, the power to infringe a protected right.” In such cases, the

legislation, which alone satisfies the “prescribed by law” requirement, must be subject to an

Oakes test;

130

Daly, “Prescribing Greater Protection”, supra note 108 at 65-9. 131

Supra note 26 at 1079. This framework was developed by Lamer J., but expressly adopted by Dickson C.J.,

speaking for the majority.

28

alternatively, discretionary orders might be made pursuant to legislation that “confers an

imprecise discretion” to make the impugned order. In such cases, reviewing courts must

determine whether the decision-maker had the jurisdiction to make the order, which, if intra

vires and thus “prescribed by law,” must be subject to the Oakes test.

For the purposes of justifying a Charter violation, the source of the impugned infringement did not

matter. In either event, regardless of whether the infringement resulted from a “law” or an exercise

of “discretion,” governments were put to the same justificatory onus: courts were required to

employ a formal Oakes test to ensure constitutionality. This parity was important. As Charon J.

and the Court’s majority maintained in Multani,

With respect, it is of little importance to Gurbaj Singh — who wants to exercise

his freedom of religion — whether the absolute prohibition against wearing a

kirpan in his school derives from the actual wording of a normative rule or merely

from the application of such a rule. In either case, any limit on his freedom of

religion must meet the same requirements if it is to be found to be

constitutional. In my opinion, consistency in the law can be maintained only by

addressing the issue of justification under s. 1 regardless of whether what is in

issue is the wording of the statute itself or its application.132

Doré alters this “constitutional orthodoxy,”133

thereby undermining the purposes that the

“prescribed by law” requirement is meant to play. According to the Court, including three Justices

who signed onto Charon J.’s judgment in Multani, only a “law or rule of general application”

should continue to be justified under Oakes, while a discretionary decision should be reviewed

for proportionality.134

The Court drew this distinction on the basis that “an adjudicated

administrative decision is not like a law which can, theoretically, be objectively justified by the

state, making the traditional s. 1 analysis an awkward fit.” (This assertion, of course, ignores the

132

Multani, supra note 37 at para. 21. 133

Leckey, “Prescribed by Law”, supra note 34 at 575. 134

Doré, supra note 1 at para. 39.

29

fact that the Court has readily applied the Oakes test to administrative decisions on multiple

occasions,135

and that the Oakes test continues to apply to lower court discretionary orders.136

)

This distinction raises a number of concerns, arguably exacerbating the theoretical difficulties

already inherent in the Slaight approach.137

For the moment, I leave aside the Court’s suggestion

that both exercises of judicial review are essentially the same, a claim that I address in Part IV.

Rather, I make the following arguments.

First, while superficially intuitive, the distinction between “law” and “discretion” is notoriously

difficult to draw.138

In fact, as the Court’s own jurisprudence has illustrated, the distinction has

“frequently proved impossible to make,”139

a result of the fact that, much like the superficially neat

divide between “legislatures that legislate” and “executives that execute,” the distinction between

law and discretion obscures a middle ground in which both “necessarily exist in combination.”140

Indeed, although Slaight was decided at a time when administrative law distinguished between

decisions involving “law” and “discretion,” that practice was abandoned in Baker, in which the

Court recognized that there was no clear-cut distinction between the two.141

This distinction, and

more precisely the stakes it creates – correctness vs. reasonableness review – will undoubtedly

135

Supra note 27. 136

See, for example, Alberta v AUPE, 2014 ABCA 197 (concerning an injunction issued by Alta. Q.B.). 137

See, generally, Daly, “Prescribing Greater Protection”, supra note 108 for a full treatment. 138

As LeBel noted in Multani, supra note 37 at para. 151, “this dualism underestimates the problems that arise in

applying the classifications it invites.” 139

See, generally, Susan Gratton, “Standing at the Divide: the Relationship between Administrative Law and the

Charter post-Multani” (2008) 53 McGill LJ 477 [Gratton, “Standing at the Divide”] for a history of the Court’s

treatment of the law/discretion spectrum. See also, generally, Geneviève Cartier, “Administrative Discretion:

Between Exercising Power and Conducting Dialogue” in Colleen M Flood and Lorne Sossin, eds, Administrative

Law in Context, 2d ed, (Toronto: Emond Montgomery, 2013) 381. 140

See Gratton, “Standing at the Divide”, ibid at 495. In a nutshell, Gratton identifies the problems as follows:

“Where Charter limits occur through government action lying in the middle ground of the law/discretion spectrum,

courts are unable to agree on the point at which law ends and discretion begins – the point at which they must set

aside their legal tools of statutory interpretation and vagueness in deference to the administrator’s own interpretation

of his or her authority. The elegant distinction between law and discretion, on which the Slaight framework depends,

falls apart in practice since it fails to account for cases involving weak discretion.” 141

Cartier, “Administrative Law: Twenty Years After the Charter”, supra note 65 at 209, 224.

30

encourage parties to dispute the nature of the authority responsible for Charter infringements.142

Constitutional litigation will thus be even more complex – e.g., parties will have to be prepared to

argue their cases through both the Oakes and administrative law frameworks – and, consequently,

more expensive. This will give Charter claimants greater pause in considering whether to vindicate

their rights. In having this effect, Doré undermines the “prescribed by law” requirement’s attempt

to hold government accountable for its actions, and makes the infringement of Charter rights

more difficult to maintain.

Second, this same unworkable distinction shifts the evidentiary burden. Under the Oakes test,

proof of an infringed Charter right shifts the evidentiary onus onto the government actor, which

must then justify its conduct. Under an administrative law approach, however, government

actors have no such obligation, strictly speaking. Instead, the applicant is responsible for

proving the unreasonableness of the impugned decision as a whole (i.e., the breach of a Charter

right and the lack of the breach’s justification), a usually onerous threshold to meet. Thus, post-

Doré, government actors are now largely relieved of their responsibility to justify potentially

unconstitutional activity.143

Again, this undermines the role that the “prescribed by law”

requirement is meant to play in both holding government accountable for its actions and making

the infringement of Charter rights more difficult to maintain.

Third, the distinction between “law” and “discretion” encourages “government by discretion.”

Today, statutes are commonly skeletal, leaving much of government’s work to the exercise of

142


Ibid. at 435.

31

discretion.144

As a result, Charter violations are more likely to arise as a result of discretionary

administrative action than by appearing explicitly in legislation.145

Doré further incentivizes this

trend. After all, why would governments fearing judicial scrutiny pass legislative

pronouncements implicating Charter rights (i.e., set up targets for correctness review under

Oakes) when they can establish discretionary decision-makers to do their bidding for them

(i.e., set up targets for reasonableness review)? Doré makes the decision easy. Self-interested

governments will now be strongly motivated to forgo legislating clear pronouncements that

affect Charter rights and, instead, delegate even greater authority to administrative actors to

make Charter-implicating determinations. This will only exacerbate criticisms that the use of

discretionary decision-making to implicate Charter rights subverts the rule of law concerns over

predictability and certainty imbedded in s. 1.

Lastly, the Doré framework – one based on administrative law – leaves those who have suffered

a violation of their Charter rights unable to claim Charter remedies.146

One can conceive of a

number of situations in which this fact might either play a determinative role in deciding whether

to litigate or, perhaps, provide the government with a decisive advantage. For example,

government conduct might spur a class-action based on the infringement of Charter rights.147

However, forced to mount their claim through Doré, the remedial rug would be pulled from

beneath the class’ feet if, for instance, the class’ aim is to claim damages, something unavailable

144

Macklin, “Standard of Review”, supra note 120 at 318. 145

Gratton & Sossin, “In Search of Coherence,” supra note 2 at 146. 146


For example, a recent action was commenced targeting the Communications Security Establishment Canada’s

electronic spying on Canadians, an alleged breach of the Charter. See “Class action lawsuit targets Canada’s spy

agency”, The Toronto Star (1 April 2014) online: The Toronto Star

<http://www.thestar.com/news/canada/2014/04/01/classaction_lawsuit_targets_canadas_spy_agency.html>.

http://www.thestar.com/news/canada/2014/04/01/classaction_lawsuit_targets_canadas_spy_agency.html

32

on judicial review. This consequence undermines, if not completely eviscerates s. 1’s

accountability function.

(d) Institutional concerns

Doré also raises a number of institutional concerns. My focus here is not the wording of s. 1 per

se, but, more fundamentally, with the legitimacy of the exercise it entails. In light of Doré’s

instruction to reviewing courts to defer to administrative decision-makers implicating Charter

rights, it is worth taking a closer look at the identity of these decision-makers, along with the

institutional setting within which they operate. This section illustrates why according deference

to these decision-makers is, in addition to the other arguments I raise, yet another nail in the

coffin for the primacy of Charter rights.

Canada’s administrative state spans an array of substantive areas. It is because of this breadth

that many more Canadians have their rights determined by administrative tribunals than they do

by courts.148

In fact, the administrative justice system is the only part of Canada’s justice system

that the majority of Canadians will ever experience.149

For the most part, therefore, it is

Canada’s administrative justice system, not its courts, that must ensure the Charter’s

effectiveness.150

As Lorne Sossin and Michael Friedman write,

[i]f the Charter is to be Canada’s supreme law, it must have relevance for those

who are most vulnerable to the adverse effects of government action. In other

148

R. v. Conway, 2010 SCC 22 at para. 77 [Conway], citing Cooper v. Canada (Human Rights Commission), [1996]

3 SCR 854 per McLachlin J., in dissent. See also Quebec (Attorney General) v. Quebec (Human Rights Tribunal),

2004 SCC 40 at para. 28; Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers'

Compensation Board) v. Laseur, 2003 SCC 54 149

That the administrative justice system is part of Canada’s justice system was made clear in Paul v. British

Columbia (Forest Appeals Commission), 2003 SCC 55 at para. 22 per Bastarache J., speaking for the Court. 150

Sossin & Friedman, “Charter Values”, supra note 68 at 2.

33

words, if the Charter is to matter, it must matter in the realm of administrative

justice.151

Doré creates a concern insofar as those entrusted with the Charter’s guarantees in the

administrative justice system are doctrinally assumed to not only be experts in their respective

fields, but in applying the Charter in their respective fields. The Supreme Court has repeatedly

deemed it appropriate to defer to the exercise of legislatively entrusted power. (In fact, as Part V

explains, the Court now regards its relationship with Canada’s administrative justice system as

part of a “wider constitutional project” of public justification,152

one within which the Court is

willing to permit the administrative stare a growing role in making law.) For example, the Court

has observed that “[w]hen considering a decision of an administrative tribunal interpreting or

applying its home statute, it should be presumed that the appropriate standard of review is

reasonableness.”153

Likewise, the Court has affirmed that, “[b]y setting up a specialized tribunal

to determine certain issues, the legislature is presumed to have recognized superior expertise in

that body in respect of issues arising under its home statute or a closely related statute,

warranting judicial review for reasonableness.”154

Contrary to Doré’s suggestion otherwise, this presumption does translate perfectly into the

language of Charter adjudication. Despite having a particular field sensitivity, many

administrative actors do not have the legal training or institutional capacity necessary to resolve

Charter disputes. Many are non-lawyers, are not familiar with Charter jurisprudence, and may

151

Sossin & Friedman, “Charter Values”, supra note 68 at 1. 152


Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 39

[Alberta Teachers’]. 154

Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 at

para. 11.

34

not have the support necessary to adjudicate Charter rights effectively. Ron Ellis, the inaugural

Chair and CEO of Ontario’s Workers’ Compensation Appeals Tribunal, and someone with over

30 years of experience in the administrative justice system, is more frank. From his view in the

trenches, he describes the system’s competence as “rarely, and only providently, optimal, and

often marginal”155

In short, many administrative decision-makers are simply not capable of

discharging the constitutional burden which, under Doré, they are assumed to easily shoulder.

There is simply no basis for the Court’s suggestion that the general field expertise wielded by

administrative decision-makers equips all of them to resolve all Charter disputes effectively.156

Moreover, many decision-makers in Canada’s administrative state function in an environment in

which they do not have a guarantee of adjudicative independence. Generally speaking,

administrative decision-makers are considered independent when operating with the benefit of

the “Valente criteria”: security of tenure, financial security, and administrative independence.157

However, the Supreme Court has made clear that a tribunal’s relationship to the executive is a

matter for the legislative branch158

and, thus, that the Valente criteria are subject to statutory

tailoring or, in many cases, complete omission. Despite multiple requests to enshrine the

principle of adjudicative independence for administrative tribunals as a constitutional guarantee,

155

Ron Ellis, Unjust by Design (Vancouver: UBC Press, 2013) at 113 [Ellis, Unjust by Design]. 156

Macklin, “Charter Right or Charter-Lite”, supra note 78 at 576. 157

Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 SCR 3; 2747-3174 Québec Inc. v. Quebec (Régie des

permis d’alcool), [1996] 3 SCR 919. For a complete treatment of the law of adjudicative independence, see Laverne

Jacobs, “Caught Between Judicial Paradigms and the Administrative State’s Pastiche: ‘Tribunal Independence,

Impartiality, and Bias” in in Colleen M Flood and Lorne Sossin, eds, Administrative Law in Context, 2d ed,

(Toronto: Emond Montgomery, 2013) 233. 158

Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control & Licensing Branch), 2001 SCC

52 at para. 20.

35

the Court has refused.159

This means that the degree of independence enjoyed by administrative

decision-makers is entirely dependent on the legislature, a highly suspect state of play when one

considers that the executive branch has as its disposal a number of tactics to ensure the

“responsiveness” of those adjudicating Charter rights.160

Chief among these is the “at pleasure”

appointment, which effectively allows the executive to dismiss its appointees at will.161

But

there are many others: the endemic use of patronage appointments to ensure that the adjudicative

deck is stacked in the government’s favour,162

seconding watchful or imposing executive branch

staff to tribunal positions,163

refusing to reappoint “problematic” adjudicators,164

integrating

judicial tribunals into their host ministries,165

and outright abolishing “wayward” tribunals.166

All have persisted notwithstanding over 40 official studies recommending change.167

As a result,

one is left to confront a “Potemkin village system of apparently independent but in fact

dependent judicial tribunals,”168

which Ellis sums up as follows:

In the executive branch’s design and administration of its judicial rights-

determining bodies, one finds, behind the façade of independence and the rhetoric

of independent decision-making, a set of pervasive structural strategies and

administrative tactics designed to optimize and protect the execute branch’s

interests and the to serve its needs for predictability and control – strategies and

tactics that subvert the administration of justice system’s rule-of-law needs and its

public promise of justice.169

159

Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36; Ell v. Alberta, 2003 SCC 35;

McKenzie v. British Columbia (Minister of Public Safety and Solicitor General), 2007 BCCA 507, leave ref’d;

Saskatchewan Federation of Labour v. Government of Saskatchewan, 2013 SKCA 61, leave ref’d. See also 160

See, generally, Ellis, Unjust by Design, supra note 155. See also Ron Ellis and Mark E. McKenzie, “Ocean Port

or the Rule of Law? The Saskatchewan Labour Relations Board”, 2009 CJALP 267. 161

See, for example, Keen v. Canada (Attorney General), 2009 FC 353. 162

Ellis, Unjust by Design, supra note 155 at 37 et seq. 163

Ibid at 75 et seq. 164



Ibid at 93 et seq. See also Lorne Sossin, “The Puzzle of Independence for Administrative Bodies”, (2008) 26

NJCL 1. 167

Ibid at 128. 168

Ibid at 36. 169

Ibid at 37.

36

If indeed it is essential to the administration of justice that justice is not only done but also seen

to be done,170

then we must seriously question why claimants before adjudicative tribunals

should enjoy fewer protections of decision-making impartiality and independence than those

pleading before courts,171

especially when Charter rights are at stake.

Ultimately, this institutional reality frustrates the Court’s purpose in granting administrative

decision-makers increasing Charter jurisdiction over the law two decades. The Court has

repeatedly asserted that “the Charter belongs to the people.”172

No less dramatically, it has

emphasized the need for “direct and early access to Charter remedies in forums competent to

issue such relief.”173

The institutional concerns raised above, however, cast a dubious pall over

the exercise with which administrative decision-makers are, under Doré, now entrusted and, with

it, the Court’s commitment to these grand ideals.

IV. The justification juxtaposition: proportionality v. reasonableness

This section re-examines Doré’s distinction between “law” and “discretion,” and, more

specifically, its consequent dichotomy of rights review: “laws” infringing Charter rights will

continue to be reviewed under Oakes (i.e., for correctness), while “discretionary” decisions doing

the same are now reviewed for proportionality (i.e., for reasonableness). Here, I respond to

170

Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 at para. 52. 171

Lorne Sossin, “The Uneasy Relationship between Independence and Appointments in Canadian Administrative

Law” in Grant Huscroft and Michael Taggart, eds, Inside and outside Canadian administrative law: Essays in

Honour of David Mullan (Toronto: University of Toronto Press, 2006) 50 at 52. Dean Sossin notes that many of

these same tribunals have jurisdiction that once belonged to courts, making the state of affairs even more suspect. 172

See, most recently, R. v. Conway, 2010 SCC 22 at para. 77, citing Cooper v. Canada (Human Rights

Commission), [1996] 3 SCR 854 at para. 70 per McLachlin J., in dissent. 173

See, most recently, R. v. Conway, 2010 SCC 22 at para. 35, citing R. v. 974649 Ontario Inc., 2001 SCC 81 at

para. 75.

37

Abella J.’s suggestion that, despite this asymmetry, both frameworks share “conceptual

harmony” ensuring “rigorous Charter protection.” This section will illustrate why this disparity

compromises s. 1’s requirement that limits on Charter rights be “reasonable” and “demonstrably

justified.” For the purposes of this section, I assume that this requirement is based on a standard

at least as stringent as the Oakes test, such that any derogation from Oakes’ stringency is an

impermissible compromise. As I illustrate, the Doré framework suffers from this infirmity.

(a) The argument: the difference in deference

Doré’s central teaching is its integration of proportionality analysis into the administrative law

doctrine of reasonableness review. In this regard, Doré marks the Court’s adoption of the unity

of public law thesis under which both administrative law and the Charter share in the protection

of fundamental rights by assessing the legality of public decision-making using a substantive,

values-based approach. Despite the significance of this development, Abella J. offers little

supporting analysis. For the most part, she rests her decision on the aspirational observation that

while a formulaic application of the Oakes test may not be workable in the context of adjudicated

decisions, it can be distilled to flex “the same justificatory muscles” within the context of

reasonableness review. That may be true. However, Abella J. then goes too far, equating

reasonableness review and the Oakes test on the basis that they both entail according deference

to government actors.

In making this argument, she draws on the similar language in the jurisprudence applying

reasonableness review and s. 1 concerning the margin of manoeuvre to which government actors

are entitled when implicating Charter rights. Consider the key portions of Abella J.’s judgment,

38

which follows her instruction to administrative decision-makers to first consider the statutory

objectives at issue:

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. This

is where the role of judicial review for reasonableness aligns with the one applied

in the Oakes context. As this Court recognized in RJR-MacDonald Inc. v.

Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160, “courts must

accord some leeway to the legislator” in the Charter balancing exercise, and the

proportionality test will be satisfied if the measure “falls within a range of

reasonable alternatives”. The same is true in the context of a review of an

administrative decision for reasonableness, where decision-makers are entitled to

a measure of deference so long as the decision, in the words of Dunsmuir, “falls

within a range of possible, acceptable outcomes”…

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. As LeBel J. noted in Multani, when a court is faced

with reviewing an administrative decision that implicates Charter rights, “[t]he

issue becomes one of proportionality”…and calls for integrating the spirit of s. 1

into judicial review. Though this judicial review is conducted within the

administrative framework, there is nonetheless conceptual harmony between a

reasonableness review and the Oakes framework, since both contemplate giving a

“margin of appreciation”, or deference, to administrative and legislative bodies in

balancing Charter values against broader objectives.174

For Abella J., no further comparison between reasonableness review and s. 1 is necessary. The

two are, for her, equal.

As argued above, the claim that the Oakes and Doré frameworks are functionally equivalent is

doubtful. Nevertheless, assuming for the moment that they indeed share the same basic focus on

proportionality, the Oakes and Doré frameworks remain distinct in one crucial respect: the

divergent roles that deference plays within each. Under Oakes, courts will assess proportionality

174

Doré, supra note 1 at paras. 56-7.

https://zoupio.lexum.com/calegis/schedule-b-to-the-canada-act-1982-uk-1982-c-11-en




39

on a standard of correctness – that is, unless deference is required, which it is in only limited

circumstances, courts may freely impose their own views on the “proper balance” to be struck.

Under Doré, however, the approach is, at least according to the letter of the Court’s gospel, less

invasive. Courts will assess proportionality on a standard of reasonableness – that is, courts

cannot, in the absence of some reviewable error, impose their own views on the “proper

balance.” Put another way, whereas correctness review invites judicial interventionism that,

generally speaking, might but need not allow government justification to stand, reasonableness

review necessarily demands judicial respect that, generally speaking, must give government

actors the final word.175

It is through this gap between the two approaches that Charter rights

threaten to fall.

To be clear, I do not advocate, let alone join the debate over, a bifurcated public law.176

(I do,

however, embrace a unity of public law thesis on the simple basis that there is no distinction

between “the normative or values-based foundations of legality animating judicial review under

the Charter and the normative or values-based foundations of legality animating judicial review

in administrative law.”177

) Nor do I take issue with the underlying application of proportionality

175

David Mullan appears to make the same argument in commenting on Abella J.’s claim of “conceptual harmony”

between the Oakes and Doré frameworks as follows: “even when translated to the world of judicial review of

administrative action, that limited concession to a margin of appreciation in the context of a justification of a prima

facie violation of a protected right or freedom seems far removed from the respect for agency choice found in the

normal application for an unreasonableness standard of review. See Mullan, “Unresolved Issues”, supra note * at

53. 176

See, for example, David Mullan, “A Proportionate Response to an Emerging Crisis in Canadian Judicial Review

Law?” (2010) NZL Rev 233; Murray Hunt, “Against Bifurcation” in David Dyzenhaus, Murray Hunt & Grant

Huscroft, eds, A Simple Common Lawyer: Essays in Honour of Michal Taggart (Oxford: Hart Publishing, 2009) 99;

Michael Taggart, “Proportionality, Deference, Wednesbury” [2008] NZL Rev 423; Evan Fox-Decent, “The Internal

Morality of Administration” in David Dyzenhaus, ed, The Unity of Public Law (Portland, Oregon: Hart Publishing,

2004) 143; Cartier, “The Baker Effect”, supra note 30; Guy Régimbault, “Correctness, Reasonableness and

Proportionality: A New Standard of Judicial Review” (2005) 31 Man LJ 239. 177

Sheila M. Wildman, “Romancing Reasonableness: An aspirational account of the Canadian case law on judicial

review of substantive administrative decisions since CUPE v. N.B. Liquor Corporation” (LL.M. Thesis, University

of Toronto, Graduate Department of Law, 2011) at 159-60 online:

40

in the administrative sphere. Administrative actors can, at least in theory, apply the concept of

proportionality in a manner affording Charter protection commensurate with the Oakes test.

Rather, my argument rests on how reasonableness review functions.

Based on the Court’s current approach, reasonableness review generally requires courts to

cooper up deficient reasoning, an approach inherently designed to find reasons where none exist.

More troublingly, it often serves as a proxy for a free-floating form of deference under which

courts refuse to critically engage the reasons under review. This raises a serious concern given

that proportionality necessarily entails normative judgment about the relative weight and

prioritization of competing values.178

If in the post-Doré era the constitutionality of

administrative decision-making is to rest on the concept of proportionality, reviewing courts

must be required to employ reasonableness review to demand justification that in fact exhibits

this central criterion. To the extent that it does not, either because it strives to validate or, worse,

refuses to engage deficient reasoning, then reasonableness review offers little or no check on the

administrative decisions implicating Charter rights.

As explained below, I attribute these aspects of reasonableness review to the current institutional

setting of judicial review, along with reasonableness review’s unstructured nature and ultimate

aim, “deference as respect.” Consider first the institutional setting within which the exercise of

modern judicial review occurs.

<https://tspace.library.utoronto.ca/bitstream/1807/29644/7/Wildeman_Sheila_M_201106_LLM_thesis.pdf>

[Wildeman, “Romancing Reasonableness”]. 178

Ibid at 182.

https://tspace.library.utoronto.ca/bitstream/1807/29644/7/Wildeman_Sheila_M_201106_LLM_thesis.pdf

41

(b) The institutional setting of modern judicial review

Canada’s judiciary has long struggled to define its understanding of, and relationship with, the

administrate state. For decades, judicial review operated in thrall to Dicey’s formal conception

of the separation of powers.179

Under this spell, courts eyed administrative actors suspiciously,

cabining them into the narrow role of simply implementing, as opposed to interpreting, the

law.180

Thus, administrative decisions implicating so-called “judicial” or “jurisdictional”

functions – terms which courts eagerly overused – were viewed as threatening the Canadian

constitutional order and, accordingly, were given no curial deference.181

This changed with the Supreme Court’s seminal judgement in the development of the modern

law of judicial review, Dickson J.’s decision in Canadian Union of Public Employees, Local 963

v. New Brunswick Liquor Corporation.182

Marking the acceptance of the legitimacy of the

administrative state,183

CUPE relinquished the judiciary’s monopoly over statutory interpretation

and conceded that, in some circumstances, the search for legislative meaning is best left to

administrative decision-makers.184

In doing so, the Court signalled its departure from

constitutional formalism towards a collaborative conception of the separation of powers in which

179

See supra note 35. 180

Matthew Lewans, “Deference and Reasonableness Since Dunsmuir” (2012) 38 Queen’s LJ 59 at 64 [Lewans,

“Deference and Reasonableness”]. 181

Ibid at 65. See also Lewans, “Administrative Law, Judicial Deference, and the Charter”, supra note 25 at 2,

citing David Dyzenhaus, “Formalism’s Hollow Victory” (2002) 4 NZL Rev 525. 182

[1979] 2 SCR 227. 183

Dyzenhaus & Fox-Decent, “Rethinking the Process/Substance Distinction”, supra note 35 at 200; The

Honourable Justice Louis LeBel, “Some Properly Deferential Thoughts on Deference” (2008) 21 CJALP 1 at 2

[LeBel, “Thoughts on Deference”]. 184

Suzanne Comtois, “From Deference to Governance”, supra note 10 at 27.

42

Canada’s judiciary and administrative state are seen as “genuine partners” in maintaining the rule

of law.185

Since then, the Court has continued to intone, though not always faithfully,186

CUPE’s

enunciation of curial deference to administrative decision-makers. The rubric for this declaration

is what is now known as the “standard of review analysis.”187

In essence, this analysis is the

fulcrum on which the Court balances its competing rule of law imperatives to ensure substantive

legality and respect democratic constitutionalism.188

Based on its current formulation in

Dunsmuir v. New Brunswick,189

the Court’s “standard of review analysis” has not fully shed its

formalism.190

Still, it undeniably placed greater law-making power in the hands of

administrative actors.191

185

Lewans, “Deference and Reasonableness”, supra note 79 at 65. See also Lewans, “Administrative Law, Judicial

Deference, and the Charter”, supra note 25 at 3. Comtois, “From Deference to Governance”, supra note 10 at 32-

33. 186

See, generally, Paul Daly, “The Struggle for Deference in Canada” in Mark Elliott and Hanna Wilberg, eds, The

Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford: Hart Publishing, 2015)

(forthcoming). 187

U.E.S., Local 298 v. Bibeault, [1988] 2 SCR 1048; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2

SCR 557; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748; Pushpanathan v.

Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982; Dr. Q. v. College of Physicians and

Surgeons of British Columbia, 2003 SCC 19; Law Society of New Brunswick v. Ryan, 2003 SCC 20; Dunsmuir v.

New Brunswick, 2008 SCC 9. 188

Comtois, “From Deference to Governance”, supra note 10 at 26. 189

2008 SCC 9 [Dunsmuir]. 190

See, for example, Andrew Green, “Can There Be Too Much Context in Administrative Law? Setting the

Standard of Review in Canadian Administrative Law” (2014) UBC L Rev 443; Mullan, “Unresolved Issues”, supra

note 67; Lewans, “Administrative Law, Judicial Deference, and the Charter”, supra note 25 at 4; Paul Daly,

Dunsmuir’s Flaws Exposed: Recent Decisions on Standard of Review” (2012) 58 McGill LJ 483; Paul Daly, “The

Unfortunate Triumph of Form over Substance in Canadian Administrative Law” (2012) 50 Osgoode Hall LJ 317;

Diana Ginn, “New Words for Old Problems: The Dunsmuir Era” (2010) 37 Advocates’ Q 317; Alice Woolley and

Shaun Fluker, “What has Dunsmuir Taught?” (2009-2010) 47 Alta L Rev 1017 at 1019. 191

Dunsmuir, supra note 188 at para. 30, citing The Honourable Thomas A. Cromwell “Appellate Review: Policy

and Pragmatism” in 2006 Pitblado Lectures, Appellate Courts: Policy, Law and Practice. Winnipeg: Fort Garry,

2006, V-1: “legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by

acknowledging that the courts do not have a monopoly on deciding all questions of law.”

43

This is evident in Dusmuir’s simplification of substantive review. Principally, this simplification

took the form of the Court’s reducing the standards of review applicable to administrative actors

to two – correctness and reasonableness – and consolidating decades of its jurisprudence by

establishing categories of decisions to which either standard should apply.192

Post-Dunsmuir,

correctness review has emerged as clearly “exceptional,”193

applying in few instances:

(a) “constitutional questions” (which, given Doré, must now exclude questions involving

discretionary administrative decisions applying the Charter to a set of facts); (b) questions of law

that are of “central importance to the legal system as a whole and that are outside the

adjudicator’s expertise”; (c) questions regarding the jurisdictional lines between two or more

competing specialized tribunals; (d) true questions of jurisdiction or vires; and (e) cases in which

an administrative decision-maker and court may have to consider the same legal question at first

instance.194

In multiple cases following Dunsmuir, the Court could have easily slotted the issue

on appeal into a correctness category but refused to do so.195

The Court has also gone on to

doubt the existence of “true questions of jurisdiction,”196

rarifying the application of correctness

review even further.

Instead, the Court has continued to expand the application of reasonableness review and its

concomitant requirement of curial deference. Introduced in Dunsmuir, there is now a

192

Paul Daly, “Canada’s Bi-Polar Administrative Law: Time for Fusion” (2014) 39 Queens’ LJ (forthcoming). 193

McLean v. British Columbia (Securities Commission), 2013 SCC 67 at para. 25, per Moldaver J., speaking for a

majority [McLean]. 194

Alberta Teachers', supra note 152 at para. 33; Smith v. Alliance Pipeline, [2011] SCC 7 at para. 26 [Alliance

Pipeline]; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012

SCC 35 at para. 15. 195

The prime examples include Alberta Teachers’, ibid; Canada (Canadian Human Rights Commission) v. Canada

(Attorney General), 2011 SCC 53 [Mowat]; Nor-Man Regional Health Authority Inc. v. Manitoba Association of

Health Care Professionals, 2011 SCC 59; and Doré. See Lewans, “Deference and Reasonableness”, supra note 79

at 81. 196

Alberta Teachers', supra note 152 at para. 34.

44

presumption that administrative decisions-makers are entitled to deference when engaged in the

large majority of their work. This presumption applies when the question at issue (a) relates to

the interpretation of the tribunal’s enabling statute or statutes closely connected to its function

with which it has particular familiarity; (b) raises issues of fact, discretion or policy; or

(c) involves issues or missed fact and law.197

This breadth illustrates that modern judicial review

does not simply incorporate, but is animated by, the concept of deference.198

As the Court

described this turn in Doré,

judicial review should be guided by a policy of deference, justified on the basis of

legislative intent, respect for the specialized expertise of administrative decision-

makers, and recognition that courts do not have a monopoly on adjudication in the

administrative state.199

This policy of deference undergirds what Sheila Wildeman labels the “romantic account” of

judicial review. On this account, the Court’s jurisprudence on substantive review, beginning

with CUPE, is modelled on “a wider constitutional project shared among the legislative, judicial,

and executive/administrative branches,” one of “public justification – that is, of ensuring that

state action is grounded in, and so may be publically justified in light of, law.200

Abella J. echoes

this point in drawing the following parallel between CUPE/Dunsmuir and the line of cases

recently culminating in R. v. Conway, in which the Court considered the circumstances under

which tribunals can grant Charter remedies:

The administrative law approach also recognizes the legitimacy that this Court

has given to administrative decision-making in cases such as Dunsmuir and

Conway. These cases emphasize that administrative bodies are empowered, and

indeed required, to consider Charter values within their scope of

197

Alliance Pipeline, supra note 192 at para. 26. 198

The Honourable Joseph T. Robertson, “Judicial Deference to Administrative Tribunals: A Guide to 60 Years of

Supreme Court Jurisprudence” (2014) 66 Sup Ct L Rev 1. 199


Wildeman, “Pas de Deux”, supra note 51 at 325; and, generally, “Romancing Reasonableness”, supra note 176.

See also Dyzenhaus, “Constituting the Rule of Law”, supra note 9 at 487-489; LeBel, “Thoughts on Deference”,

supra note 183 at 16, 20-1.

45

expertise. Integrating Charter values into the administrative approach, and

recognizing the expertise of these decision-makers, opens “an institutional

dialogue about the appropriate use and control of discretion, rather than the

older command-and-control relationship”201

[emphasis added].

Doré, of course, extends this policy of deference to administrative actors in their relationship

with the Charter. Although the basis upon which Abella J. did so was mistaken, this mistake

reveals the extent to which the concept of deference presently informs the relationship between

the judiciary and the administrative state.

Abella J. justified extending administrative decision-makers deference on constitutional issues

on the basis there is now a “completely revised relationship between the Charter, the courts, and

administrative law than the one first encountered in Slaight.” Here, Abella J. refers to the

Court’s recognition of the “distinct advantage that administrative bodies have in applying the

Charter to a specific set of facts and in the context of their enabling legislation.”202

This

emphasis on agency expertise formed a considerable part of the basis of the Court’s decision in

Conway, in which the Court developed a new approach for determining when administrative

actors can grant remedies under s. 24 of the Charter. That test is irrelevant. The real point is

that the Court based its conclusion in Conway on, among other things, over two decades of

jurisprudence confirming that “expert tribunals should play a primary role in the determination

of Charter issues falling within their specialized jurisdiction.”203

The problem with Abella J.’s

reliance on Conway in Doré, however, is glaring: Conway may have affirmed a broader grant of

Charter jurisdiction to the administrative state, but, at the same time, it preserved the judiciary’s

ability to review the exercise of this jurisdiction on a standard of correctness. That is to say,

201



Ibid at para. 21.

46

Conway undoubtedly recognized the value of administrative field sensitivity in the context of

Charter adjudication, but never suggested that this expertise should engender curial deference.

For this reason, Doré represents a radical departure from the Court’s previous jurisprudence, and

not simply for ignoring this distinction. The significance runs deeper. The policy of deference

informing CUPE, Dunsmuir, and modern substantive review emerged as a means of reconciling

Parliament’s intent to immunize certain administrative decisions from review with the courts’

supervisory role to maintain the rule of law.204

The approach’s goal was to centre the concept of

deference on legislative intent by, in essence, asking “whether the legislator intended the

tribunal’s decision on these matters to be binding on the parties to the dispute,” or “which body

did Parliament intend to be best-situated to answer the question conclusively — the court or the

tribunal?”205

Although important, expertise was never the sole criterion for deference. It was

always one of several factors used in the judicial fiction of construing legislative intent to solve

the appropriate standard of review. Doré unhinges the importance of administrative expertise

from this interpretive exercise. The Court now appears to suggest that this expertise alone, or

perhaps married to a requirement for reasons demonstrating proportionality, provides the

necessary basis for deference.

As a result, Doré moves the Court closer to a model of judicial review based on the “principle of

legality” and a culture of justification. Under this model, courts approach judicial review by

focusing solely on whether the reasons given by the decision-maker are capable of justifying the

decision, with judges deferring to the extent that such justification meets the applicable standard

204

Canada (Citizenship and Immigration) v. Khosa, [2009] 1 SCR 339, 2009 SCC 12 at para. 82. 205

Smith v. Alliance Pipeline Ltd., [2011] 1 SCR 160, 2011 SCC 7 at para. 96.

47

of review.206

This development is positive insofar as it abandons Dunsmuir’s “plain fact

conception” of the rule of law – principally its polestar of legislative intent – and reengineers the

concept of legality on the relationship between an administrative official’s reasoning and

conclusion.207

This explanation would have been a better normative basis for the Court’s

decision. As is stands, however, Abella J.’s reliance on the expertise of administrative decision-

makers leaves her emphasis on Conway misplaced. If the Court has now broken tradition by

grounding Charter adjudication in culture of justification, Conway does not help rationalize this

development.

Nevertheless, Abella J.’s misuse of Conway illustrates my point about the extent to which the

concept of deference currently informs the relationship between the judiciary and the

administrative state. As this section has attempted to illustrate, the institutional setting of

modern judicial review is one informed by a retreat from judicial imperialism. The pendulum is

now swinging in the other direction – generally speaking, at least – towards a cooperative

institutional enterprise. (As explained below, the Court is still prone to occasional fits of

asserting judicial hierarchy.) Given the nature of its departure from the Court’s previous

jurisprudence, Doré adds further momentum in the judiciary’s transit to deference. The point, at

the risk of sounding trite, is precisely Doré’s ratio: the standard of review need not be adjusted

simply because Charter rights are at issue – the judiciary should defer to administrative actors on

those determinations as well.

206

David Dyzenhaus, Murray Hunt & Michael Taggart, “The Principle of Legality in Administrative Law:

Internationalisation as Constitutionalisation” (2001) 1 OUCLJ 5 at 6. See also, Dyzenhaus, “The Politics of

Deference”, supra note 9 at 302-307; Dyzenhaus, “Dignity in Administrative Law,” supra note 67 at 110-1; “Law as

Justification,” supra note 67. 207

Dyzenhaus, “Dignity in Administrative Law,” supra note 67 at 106-9.

48

(c) The nature of reasonableness review

How, then, does reasonableness actually play out within this institutional setting? What guides

courts’ determinations of what is reasonable, and what might this guidance bring to bear on

courts’ assessment of proportionality in administrative decision-making?

While the standard of reasonableness is at the heart of modern judicial review, it is “one of the

most widely used and yet most complex legal concepts.”208

Despite the Court’s overhaul of the

framework for judicial review in Dunsmuir, there is still no judicial consensus on when an

administrative decision is reasonable.209

More to the point, the Court has provided “little

concrete guidance” on what reasonableness review entails and, in several cases, has only

increased the uncertainty about its meaning.210

Courts typically engage in the same ritualistic incantation before engaging in reasonableness

review. Setting the table, they almost invariably echo Dunsmuir’s hollow pronouncements that

reasonableness is a deferential standard that focuses on “justification, transparency and

intelligibility in the decision-making process,” and that the decision under review must fall

“within a range of possible, acceptable outcomes that are defensible in regards to the facts and

the law.”211

Of course, neither bromide offers any practical means of identifying reasonableness.

The same applies to the Court’s additional clarifications that reasonableness “takes its colour

208

Dunsmuir, supra note 188 at para. 46. 209

Comtois, “From Deference to Governance”, supra note 10 at 24. See also Barak, Proportionality, supra note 62

at 374, who makes the same point about the concept of reasonableness generally. 210

Paul Daly, “The Scope and Meaning of Reasonableness Review” in Joseph T Robertson, Peter A Gall & Paul

Daly, Judicial Deference to Administrative Tribunals in Canada: Its History and Future (Toronto: LexisNexis,

2014) at 1 [Daly, “The Scope and Meaning of Reasonableness”]. 211

Dunsmuir, supra note 188 at para. 47.

49

from the context,” and that the range of reasonable alternatives widens or narrows depending on the

nature of the question at issue or other circumstances.212

While helpful in identifying

reasonableness review as an essentially contextual inquiry, these too fail to provide any practical

guidance on how to determine when a decision is in fact reasonable.

A comprehensive description of reasonableness review would involve a much larger endeavour

than required here.213

For the purposes of this discussion, suffice it to say that there is no

singular approach to identifying or explicating how the standard is supposed to function. More

than 30 years after Dickson C.J.’s comment in Slaight that “patent unreasonableness rests to a

large extent on unarticulated and undeveloped values,”214

the same might be easily said of

reasonableness review.215

This should come as no surprise. Tests of general application, as the

Honourable John Evans recently observed, “have never comfortably fitted the complex,

infinitely varied and messy realities of public administration,” leaving the law relating to the

standard of review of administrative action a “work in progress.”216

But larger trends are visible. Canvassing the Court’s case law on substantive review since

CUPE, Sheila Wildeman observes “a deep instability or vacillation as between correctness-style

attitudes of judicial supremacy and patent unreasonableness-style attitudes of judicial

212

McLean, supra note 192 at paragraphs 37-41; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 at

paragraphs 17-18 and 23; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at paragraph 59; See also

Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56; Canada (Attorney General) v.

Canadian Human Rights Commission, 2013 FCA 75; Canada (Attorney General) v. Abraham, 2012 FCA 266 at

paragraphs 37-50; 213

For a lengthy and excellent treatment, however, see Wildeman, “Romancing Reasonableness”, supra note 175. 214

Slaight 215

Paul Daly, A Theory of Deference (Cambridge: Cambridge University Press, 2012) 142 [Daly, A Theory of

Deference]. 216

The Honourable John M Evans, “Standards of Review in Administrative Law” (2013) 26 CJALP 67 at 79.

50

abdication,” decisions that offer models of both deference and interventionism.217

Matthew

Lewans labels these trends the Court’s “restrictive” and “restorative approaches,” respectively,

the former leaving no room for interpretive disagreement between courts and tribunals, and the

latter either imposing no duty on decision-makers to provide reasons or enabling judges to fill in

gaps in reasoning.218

This duality is unsurprising. After all, reasonableness is not a unitary yardstick of legality, but

rather “a means of structuring the discourse on deference.”219

And, at root, this discourse is

informed by the same two competing rule of law imperatives that the standard or review analysis

attempts to reconcile: preserving administrative legality and respecting legislative intent. The

Court’s “correctness-style attitudes of judicial supremacy” – its “restrictive approach” – and its

“patent unreasonableness-style attitudes of judicial abdication” – or its “restorative approach” –

are simply manifestations of these individual forces. In every case, one of them has to win out.

Thus, this general “instability” should raise no consternation. Indeed, Paul Daly argues that “the

root of the problem” is the attempt to maintain only one standard of deferential review, and that

there may very well be two.220

What should raise alarm is the Court’s current willingness, as Lewans recognizes, to fill in gaps

in administrative reasoning. This approach follows Newfoundland and Labrador Nurses’ Union

217

Wildeman, “Romancing Reasonableness”, supra note 175 at 366-377. 218

Lewans, “Deference and Reasonableness”, supra note 79 at 94. 219

Grant Huscroft, “Judicial Review from CUPE to CUPE: Less Is Not Always More” in Grant Huscroft and

Michael Taggart, eds, Inside and outside Canadian administrative law: Essays in Honour of David Mullan

(Toronto: University of Toronto Press, 2006) 296 at 297. He made this comment about the pragmatic functional

approach but it is equally helpful here. 220

Daly, “The Scope and Meaning of Reasonableness Review”, supra note 209 at 30.

51

v. Newfoundland and Labrador (Treasury Board),221

the Court’s most notable explication of

reasonableness review since Dunsmuir. In that case, as in Dunsmuir and on several other

occasions, the Court endorsed David Dyzenhaus’s concept of “deference as respect.” 222

But it

went much further. In particular, it placed inordinate emphasis on the notion that “deference as

respect” requires “respectful attention to the reasons offered or which could be offered in support

of a decision,”223

along with the idea that “even if the reasons in fact given do not seem wholly

adequate to support the decision, the court must first seek to supplement them before it seeks to

subvert them” [emphasis added].224

Taking these statements out of content,225

the Court has

severely minimized the level of justification that administrative actors need to provide in order to

substantiate their decisions. In fact, several of the Court’s recent judgments illustrate a form of

reasonableness review that, going further than simply filling in gaps in reasoning, actively

excuses failures of transparency and justification.

Consider Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association.226

That case involved numerous complaints to the Information and Privacy Commissioner of

Alberta alleging that the Alberta Teachers’ Association (“ATA”) disclosed personal information

in contravention of the province’s Personal Information Protection Act (“PIPA”). At the time,

s. 50(5) of PIPA provided that an inquiry into an alleged breach of the Act “must be completed

within 90 days” unless the Commissioner notifies the parties otherwise and provides an

221

2011 SCC 62 [Newfoundland Nurses]. 222

Ibid at paras. 11-13. See also Baker, supra note 63 at paras. 48, 65; Trinity Western University v. British

Columbia College of Teachers, 2001 SCC 31 at para. 61; Dunsmuir, supra note 188 at para. 48; Alberta Teachers',

supra note 152 at para. 52. 223

Dyzenhaus, “The Politics of Deference”, supra note 9 at 286. 224

Ibid at 304. 225

Daly, “The Scope and Meaning of Reasonableness Review”, supra note 209 at 21. As Daly, points out

Newfoundland Nurses was meant to address situations in which courts are tasked with reviewing sparse, not entirely

absent, reasons. 226

Supra note 152.

52

anticipated date for completing the inquiry. Almost two years after the complaints were

initiated, the Commissioner extended the estimated date on which the inquiry would be

concluded, seven months after which the Commissioner found that the ATA had contravened

PIPA. The ATA challenged the propriety of this extension for the first time on judicial review,

arguing that the inquiry automatically terminated as a result of the Commissioner extending the

90-day period only after that period expired. Agreeing to hear the challenge, the Court was then

left to review a decision – i.e., the Commissioner’s interpretation of s. 50(5) of PIPA – for which

it had no immediate reasons. The issue then: how can the Court review a decision for which

there are no reasons? The Court found that it did not have to look far, relying on the

Commissioner’s interpretations of s. 50(5) in other matters, which the Court found provided a

reasonable basis for the “implied decision” in this case.227

The decision in McLean v. British Columbia (Securities Commission)228

also ventures into this

metaphysical realm of implied reasoning. In that case, McLean and the Ontario Securities

Commission began discussions in July 2001 about “certain possible improper actions” that

McLean was alleged to have committed. In September 2008, they entered into a settlement

agreement. Almost a year and a half later, the Executive Director of the B.C. Securities

Commission notified McLean that is was invoking s. 161 of the B.C. Securities Act,229

which

allows the Commission to act in the public interest by imposing sanctions on a person who has

“agreed with a securities regulatory authority in Canada or elsewhere to be subject to sanctions,

conditions, restrictions or requirements.” McLean disputed the ability to make such an order

given s. 159 of the Act, which requires that such proceedings “not be commenced more than six

227


Supra note 192. 229

RSBC 1996, c 418.

53

years after the date of the events that give rise to the proceedings.” This raised the key issue in

the case: what were “the events” giving rise to a proceeding under the Act – the Ontario

Commission’s allegations of misconduct, or the settlement agreement many years later? No oral

hearing was requested or held. The Commission, without offering any interpretation of its

jurisdiction, ordered McLean to cease trading in securities for over three years.

The British Columbia Court of Appeal remitted the matter back to the Commission to explain its

order.230

Although it held that the Commission’s reasons on the limitation period issue were “not

essential” given that they involved a question of law (i.e., statutory interpretation) to which the

standard of correctness applies, the Court held that the Commissioner should have explained why

its order was in the public interest. On further appeal, the Supreme Court was asked to review

only the limitation period issue. Unlike the situation in Alberta Teachers’, in which the Court

had at least the decision-maker’s previous interpretation of the provision at issue to serve as

yardstick, here the Court had nothing. The Court, however, had no difficulty upholding the

Commissioner’s order. Finding that the appropriate standard of review was reasonableness, and

notwithstanding either the complete absence of reasons or the breach of procedural fairness

ordinarily resulting from the absence of reasons in such circumstances, the Court found that the

Commissioner’s interpretation was ultimately consistent with the proper application of the rules

of statutory interpretation and, thus, reasonable.

Still more troubling is Agraira v. Canada (Public Safety and Emergency Preparedness).231

That

case involved a Libyan nation who claimed refugee status on the basis that he was previously

230

2011 BCCA 45 at paras. 27-32. 231

Supra note 121.

54

involved in a terrorist organization, a fact that lead him to be deemed inadmissible for security

grounds under the Immigration and Refugee Protection Act (“IRPA”).232

He then applied for

ministerial relief from the determination of inadmissibility under s. 34(2) of IRPA, which, at the

relevant time, provided that a foreign national was not inadmissible on security grounds where

he “satisfies the Minister that their presence in Canada would not be detrimental to the national

interest.” To facilitate this determination, the Canada Border Services Agency prepared a

briefing note for the Minister, recommending that Agraira be granted relief since there was “not

enough evidence to conclude that [his] continued presence in Canada would be detrimental to the

national interest.”233

However, the Minister denied Agraira’s request. In short, the Minister

concluded that “[i]t is not in the national interest to admit individuals who have had sustained

contact with known terrorist and/or terrorist-connected organizations.”234

Based on his implied

interpretation of IRPA’s use of the term “national interest,” the Minister clearly thought that

one’s prior association with a terrorist organization is inimical to Canada’s national interest, and

that this fact was determinative. The problem: this interpretation gave short shrift to the

Ministry’s guidelines suggesting a host of other factors relevant to interpreting the concept of

“national interest.” The Court’s response: although the Minister’s implied interpretation was

based “predominantly” on national security and public safety, he had considered those other

factors too.235

In doing so, the Court imputed to the Minister an implied interpretation of IRPA

that “he plainly did not hold.”236

232

SC 2001, c 27. 233

Agraira, supra note 122 at para. 12. 234


Agraira, supra note 122 at paras. 64, 86-7. 236

Daly, “The Scope and Meaning of Reasonableness”, supra note 209 at 21.

55

These decisions illustrate the downside of deference. In attempting to avoid scrutinizing

decisions too closely, the Court now endeavours to see reasons where none exist, an effort that

may impute reasons to decision-makers that they never had. The Court has warned that giving

respectful attention to the reasons “which could be offered in support of a decision” is not a

“carte blanche to reformulate a tribunal’s decision in a way that casts aside an unreasonable

chain of analysis in favour of the court’s own rationale for the result.”237

However, its recent

precedents suggest that it is willing to go to extraordinary lengths to justify decisions before

casting them aside as unreasonable. The trouble with such an approach, of course, is that

reviewing courts cannot “see into the mind of an administrative decision-maker and answer

counter-factuals about what the decision-maker would have done had different arguments been

made.” In their willingness to fill in gaps in reasoning, courts may end up insulating the

decisions of administrators who, if made aware of the deficiencies in their reasoning, might well

have reached different conclusions.238

As explained below, this potential helps explain the key

difference between judicial review under the Oakes test and the Doré framework.

(d) Comparing Oakes to administrative law proportionality

In Oakes, the Supreme Court held that, in order to satisfy s. 1 of the Charter, government

activity must satisfy two central criteria that, in substance, require the government to furnish a

“reasoned demonstration of the good which the law may achieve in relation to the seriousness of

the infringement.”239

First, the objective which the impugned legislation is designed to serve

must be pressing and substantial. Second, it must pass a proportionality test based on three

237

Alberta Teachers’, supra note 152 at para. 54 238

Lemus v. Canada (Citizenship and Immigration), 2014 FCA 114 at para. 35. 239

RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199 at para. 129.

56

elements: (a) the measure adopted must be rationally connected to the objective; (b) the measure

chosen should minimally impair the right as little as possible, and (c) there must be

proportionality between the measure’s objectives and effects.

The Doré framework looks much the same, at least superficially. On judicial review of a

discretionary administrative decision for compliance with the Charter, the nature of the

reasonableness analysis also centres on proportionality, namely on ensuring that the decision

interferes with the relevant Charter guarantee no more than is necessary given the animating

statutory objective. Thus, the reviewing court must ask whether the decision-maker

disproportionately, and therefore unreasonably, limited a Charter right. In sum, both tests

demand the same ultimate objective. Although the Doré framework does not explicitly mention

concepts like “pressing and substantial purpose” or “minimal impairment,” these are necessarily

entailed in evaluating proportionality. Despite Doré’s shortcomings, authoring the limitation of

Charter rights for trivial purposes, or purposes disconnected from legitimate legislative aims, is

surely not one of them.

They also share other functional similarities. Although both foster transparent, objective, and

reasoned justification for limiting constitutional rights, neither forecloses the possibility that

subjectivity will form part of, or even dictate, the analysis.240

Both frameworks may be reduced

to an exercise in justifying one’s desired outcome using the language of proportionality. Further,

and in this same vein, both tests are context-specific. Where s. 1 is concerned, context is “the

indispensable handmaiden to the proper characterization of the objective of the impugned

provision, to determining whether that objective is justified, and to weighing whether the means

240

Re Oakes Bredt & Dodek at 187.

57

used are sufficiently closely related to the valid objective so as to justify an infringement of a

Charter right.”241

In administrative law review, reasonableness “takes its colour from the

context,”242

and “must be assessed in the context of the particular type of decision making

involved and all relevant factors.”243

This fact makes their application pliable to individual

judicial sensitivity.

But both approaches differ in one key respect.244

As explained above, the role that judicial

deference plays within each is divergent. Under Oakes, deference plays its most potent role

within the rubric of minimal impairment, the requirement responsible for invalidating almost

every piece of legislation that fails the Oakes test.245

While government actors are required to

ensure that they limit Charter rights in the least restrictive fashion possible,246

they are not held

to a standard of perfection. Rather, the impugned activity is beyond legal reproach provided it

falls within “a range of reasonable alternatives.” This is precisely where, Abella J. claimed, the

role of judicial review for reasonableness aligns with Oakes. Again, as she held:

As this Court recognized in RJR-MacDonald Inc. v. Canada (Attorney General),

[1995] 3 S.C.R. 199, at para. 160, “courts must accord some leeway to the

legislator” in the Charter balancing exercise, and the proportionality test will be

satisfied if the measure “falls within a range of reasonable alternatives”. The

same is true in the context of a review of an administrative decision for

reasonableness, where decision-makers are entitled to a measure of deference so

long as the decision, in the words of Dunsmuir, “falls within a range of possible,

acceptable outcomes.247

241

Thomson Newspapers Co. (c.o.b. Globe and Mail) v. Canada (Attorney General), [1998] 1 S.C.R. 877 at 939 per

Bastarache J.. Choudry at 520-521 – context is everything. 242

Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 59. 243

Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 at para. 18. 244

For a full treatment of their differences, see Daly, A Theory of Deference, supra note 214 at 202-16. 245

Fox-Decent & Pless, “The Charter and Administrative Law” supra note 67 at 424. 246

The Supreme Court recently described this aspect of the test under Oakes as asking whether “there is an

alternative, less drastic means of achieving the objective in a real and substantial manner.” See Alberta v. Hutterian

Brethren, supra note 89 at para. 55. 247

Doré, supra note 1 at para. 56.

58

To be certain, the contextual analysis required by s. 1 may result in a posture resembling the type

of deference that government actors ordinarily receive under reasonableness review.248

However, the scope of this deference within each framework is divergent. In assessing the range

of reasonable alternatives under Oakes, deference does not generally apply – Oakes, of course, is

a test based on correctness review. Deference applies in only limited circumstances that call into

the question the wisdom or legitimacy of the judiciary substituting the legislature’s view with its

own. This typically involves situations in which the impugned law addresses a complex social

issue,249

is designed to protect a vulnerable group,250

allocates scare resources,251

or attempts to

reconcile competing interests.252

Absent one of these scenarios, or some similar set of

circumstances raising the need for deference, courts need not defer to government actors and,

thus, may freely set aside reasoning with which they disagree. Judicial scrutiny is permissibly

intense, and courts can recalibrate the “balance” struck by government as they see fit.

In contrast, reasonableness review inherently insulates the administrative sphere from judicial

intervention. Deference informs the entire exercise of reasonableness review, in every case. In

the absence of some reviewable error, reasonableness necessarily mandates judicial restraint. As

discussed above, this approach is based on a respect for relative expertise, legislative intent and,

more significantly, by the Court’s more recent collaborative conception of the separation of

powers based on a culture of justification. Put simply, any suggestion that the Oakes test and

reasonableness review are the same simply because they involve deference is plainly wrong.

248

Cartier, The Baker Effect at 71; Christopher Bredt & Adam M Dodek, “The Increasing Irrelevance of Section 1

of the Charter” (2001) 14 Sup Ct Law Rev; Sujit Choudhry, “So What is the Real Legacy of Oakes?: Two Decades

of Proportionality Analysis under the Canadian Charter’s Section 1” (2006) 34 Sup Ct L Rev 501; Christopher D.

Bredt, “The Right to Equality and Oakes: Time for Change” (2009) 27 NJCL 59 249

Hutterian Brethren, supra note 89 at para. 53. 250

See, for example, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927. 251

Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624 at para. 85. 252

See, for example, McKinney v. University of Guelph, [1990] 3 SCR 229.

59

Taken alone, this difference should be enough to doubt the Court’s claim that the Oakes and

Doré frameworks involve “conceptual harmony.” However, there are two additional, related

reasons explaining Doré’s derogation from s. 1’s guarantee as that standard is embodied in

Oakes. Again, each of these relates to the Court’s current application of the standard of

reasonableness.

First, several of the Court’s recent decisions turn its collaborative conception of the separation of

powers or, as Wildeman calls it, the “wider constitutional project” of public justification, into a

joint project in administrative reasoning. Decisions like Newfoundland Nurses and those

following not only give administrators broad law-making power, but instruct reviewing courts to

actively, if not substantively, assist decision-makers to satisfy Dunsmuir’s call for transparency

and accountability. Having eschewed an approach to judicial review based on “a line-by-line

treasure hunt for error,”253

the Court has opened season on a new hunt, one for reasons “which

could be offered in support of a decision.” In practical terms, this means that administrative

decision-makers may be permitted to justify their decisions through a less rigorous analysis

under the Doré framework than otherwise required under Oakes.254

Decisions that may have

once been quashed under Oakes’s correctness review may now be leavened through this

“restorative” approach under which courts first seek to supplement, before subverting, them.

Even worse, as a judgment like Agraira demonstrates, the approach to reasonableness review

may even be used to impute important considerations to decision-makers that played no part in

their reasoning, transforming them entirely. This distinction from Oakes is undeniable.

253

Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC

34 at para. 54. 254

This argument is made throughout Parker, “Discretionary Administrative Decisions and the Charter”, supra note

107, but is based on the example of reasonableness review in the Court’s own “examination” of the Disciple

Council’s decision.

60

Second, the Court’s application of reasonableness review in Doré offers a more troubling

prospect. Applying correctness review, the Court may have very well quashed the Discipline

Council’s decision. However, applying an approach to reasonableness review claimed to be

based on proportionality, the Court displayed no concern for proportionality whatsoever. This

appears to be based on a further misapplication of David Dyzenhaus’s concept of “deference as

respect.” In essence, the concept recognizes the “independent weight that judges should give to

tribunal’s reasoning.”255

The relevant question on judicial review under this approach, even

where fundamental rights are concerned, is not whether the court would have reached a different

conclusion, which is what Abella J. appeared to ask,256

but whether the reasons offered “did in

fact and also could in principle justify the conclusions reached.”257

Confronted with competency

through good reasoning – what Dyzenhaus and Taggart call “the pull of justification”258

– the

“complimentary institutional response from the bench is to respect that institutional capacity.”259

As applied by the Court in Doré, however, the Court’s approach to reasonableness review is

based a free-floating form of deference disconnected from the reasons under review. Lower

courts are now taking this lead. Early indications of Doré’s curial application are, for the most

part, that most courts are simply “deferring” to administrative decision-makers, ignoring the

255

Dyzenhaus, “The Politics of Deference,” supra note 9 at para. 302-3. See also, generally, “Proportionality and

Deference in a Culture of Justification” in G. Huscroft, B.W. Miller, and G. Webber (eds), Proportionality and the

Rule of Law: Rights Justification, Reasoning (New York, Cambridge University Press, 2014) 234; Dyzenhaus,

“Dignity in Administrative Law,” supra note 67. 256

Recall that Abella J.’s conclusion was that the Council’s decision “cannot be said to represent an unreasonable

balance of Mr. Doré’s expressive rights with the statutory objectives.” See Doré, supra note 1 at para. 71. 257

Dyzenhaus, “The Politics of Deference,” supra note 9 at para. 303-4. 258

David Dyzenhaus and Michael Taggart, “Reasoned Decisions and Legal Theory” in Douglas E. Edlin, ed.,

Common Law Theory (New York: Cambridge University Press, 2007) 134. 259

Mary Liston, “’Alert, alive and sensitive’: Baker, the Duty to Give Reasons, and the Ethos of Justification in

Canadian Public Law, in David Dyzenhaus, ed, The Unity of Public Law (Portland, Oregon: Hart Publishing,

2004)113 at 117.

61

concept of proportionality entirely or, likewise, refusing to ask how “how the Charter value at

issue will best be protected in view of the statutory objectives.”260

V. Conclusion

This thesis has attempted to illustrate that, with the door to proportionality now swung open into

administrative law, the view is disappointing. Doré embodies a welcome, further shift away

from a formal conception of the separation of powers towards a greater culture of justification.

But at what cost? It is not clear whether the methodology that administrative decision-makers

must now employ when engaging the Charter resembles Oakes or something trivializing

fundamental rights into just another part of the factual matrix. Nor is it clear how such decisions

should be reviewed through the lens of reasonableness. Courts applying the Supreme Court’s

latest guidance will likely strain to help decision-makers complete critical analytical turns,

assuming they apply. More unnerving, they might also follow the Supreme Court’s own lead in

Doré and refuse to critically engage the reasons under review. All of these facts bring into view

a palpable dilution of the constitutional guarantee that the Charter’s rights are subject to

“reasonably and demonstrably justified limits in a free and democratic society” in a number of

respects. The answer, I suggest, is that in order to fulfil their essential accountability function

and truly ensure “rigorous Charter protection,” courts must require administrative actors to

justify their decisions in a manner that generally tracks the analytical criteria of the Oakes test. I

260

Kamel v. Attorney General of Canada, 2013 FCA 103; Brar v. Attorney general of Canada, 2014 FC 763; El

Shurafa v. Attorney General of Canada, 2014 FC 789; Québec (Procureur général) c. Loyola High School, 2012

QCCA 2139; Ktunaxa Nation v. British (Forests, Lands and Natural Resources), 2014 BCSC 568.

62

am not alone in this suggestion,261

and at least one court has taken such an approach.262

Failing

further guidance from the Supreme Court to this end, the door to proportionality will,

unfortunately, recall the lid to Pandora’s Box.

261

Parker, “Discretionary Administrative Decisions and the Charter”, supra note 107 at 188 et seq. Macklin,

“Charter Right or Charter-Lite”, supra note 77. 262

Wilson v. University of Calgary, 2014 ABQB 190.

63

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