DISCRETIONARY ADMINISTRATIVE DECISIONS AND THE CHARTER OF RIGHTS: DOR? AND DETERMINING THE ?PROPORTIONATE? BALANCE by Sarah R. H. Parker B.A., Victoria University of Wellington, 2006 LL.B. (Hons), Victoria University of Wellington, 2006 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in The Faculty of Graduate and Postdoctoral Studies (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) December 2013 ? Sarah R. H. Parker, 2013 ii ABSTRACT This thesis examines the uncertainty in Canadian public law arising from the Supreme Court of Canada?s decision in Dor? v Barreau du Qu?bec [Dor?] regarding judicial review of rights-limiting administrative decisions. Prior to Dor?, the courts applied differing approaches when reviewing the constitutionality of discretionary administrative decisions, vacillating between review under the Charter or an administrative law approach. With Dor?, the Court has attempted to resolve the longstanding debate about the appropriate methodological approach to judicial review of administrative decisions for compliance with the Charter, holding that an administrative law approach should be applied. The ?Dor? approach? requires an assessment of whether the administrative decision reflects a proportionate balancing of the relevant Charter values with the statutory objectives. I analyze the Dor? approach, with reference to the historical jurisprudence and academic literature. I suggest that a number of questions and uncertainties are raised by the Court?s lack of guidance on how this approach deals with some of the significant tensions in the relationship between administrative law and the Charter. In particular, the Dor? approach does not guarantee that administrative decisions infringing on Charter rights and freedoms are subject only to ?such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society? (as required by section 1 of the Charter). I propose an analytical methodology for judicial review of rights-limiting administrative decisions that is carried out within an administrative law framework but incorporates the spirit of section 1 of the Charter (and the proportionality analysis adopted by the Court in R v Oakes). This approach builds on the Dor? ?proportionate balancing? approach to create a review framework that: 1. Provides greater assurance that rights-limiting administrative iii decisions will only be justified if the limit meets the rule of law principles underlying the section 1 ?prescribed by law? requirement, and 2. Scrutinizes the decision in a more rigorous manner than the review undertaken in Dor?. This recommended approach offers a more coherent and unified conception of the relationship between administrative law and the Charter, and better respects the requirements in section 1 of the Charter. iv PREFACE This thesis is original, unpublished, independent work by the author, Sarah R. H. Parker. v TABLE OF CONTENTS Abstract ...................................................................................................................................ii ?Preface ....................................................................................................................................iv ?Table of Contents ...................................................................................................................v ?Acknowledgements...............................................................................................................vii ?1 ? Introduction ......................................................................................................................1 ?1.1 ? Overview and structure of thesis ...........................................................................................4 ?1.2 ? Fundamentals of administrative law and the Charter..........................................................7 ?1.2.1 ? Administrative law ...........................................................................................................8 ?1.2.2 ? The Charter .....................................................................................................................12 ?1.3 ? Proportionality ......................................................................................................................14 ?1.3.1 ? Benefits and criticisms of a structured proportionality test ............................................15 ?2 ? Changing conceptions of the relationship between administrative law and the Charter ............??????????????????????????.30 ?2.1 ? Relationship between administrative law and the Charter ................................................31 ?2.1.1 ? The unity of public law thesis.........................................................................................31 ?2.1.2 ? Key tensions in the relationship......................................................................................32 ?2.2 ? Initial conceptions of the relationship: Slaight ...................................................................35 ?2.2.1 ? Relationship between administrative law and the Charter in early cases ......................37 ?2.3 ? The struggle for coherence: diverging approaches emerge...............................................42 ?2.3.1 ? Debate over administrative agencies? jurisdiction..........................................................42 ?2.3.2 ? Debate over a Charter or administrative law approach..................................................48 ?2.3.3 ? Increasing coherence?.....................................................................................................58 ?2.3.4 ? A merging of ?universes?: Conway................................................................................61 ?2.4 ? Conclusion..............................................................................................................................63 ?3 ? The Dor? approach.........................................................................................................65 ?3.1 ? Case history............................................................................................................................65 ?3.2 ? Supreme Court: administrative law or Charter approach? ..............................................68 ?3.3 ? Rationale for choosing the administrative law approach ..................................................70 ?3.3.1 ? Institutional dialogue ......................................................................................................71 ?3.3.2 ? Discretionary decisions and ?law? .................................................................................79 ?3.3.3 ? Reasonableness standard of review ................................................................................83 ? vi 3.3.4 ? Revised relationship between administrative law and the Charter ................................95 ?3.4 ? The Dor? approach: a new proportionality test? ...............................................................98 ?3.4.1 ? Approach to exercising discretion and judicial review ..................................................98 ?3.4.2 ? Proportionality analysis under the Charter: the Oakes test ..........................................101 ?3.4.3 ? ?Principles of fundamental justice? analysis ................................................................112 ?3.4.4 ? Balancing Charter values: the common law approach.................................................116 ?3.4.5 ? Similarities and differences to previous approaches ....................................................122 ?3.4.6 ? Conclusion: A new proportionality test? ......................................................................133 ?4 ? Potential Issues with the Dor? Approach ...................................................................135 ?4.1 ? Conceptual coherence .........................................................................................................136 ?4.2 ? Justificatory standard for Charter infringements ............................................................139 ?4.2.1 ? Burden of proof ............................................................................................................140 ?4.2.2 ? Justification for the infringement .................................................................................143 ?4.2.3 ? Rejection of a structured proportionality test ...............................................................146 ?4.2.4 ? Potential for varying approaches ..................................................................................149 ?4.3 ? Discretion and the rule of law ............................................................................................154 ?4.3.1 ? Categorical approach to law and discretion..................................................................155 ?4.3.2 ? Rule of law concerns arising from the Dor? approach.................................................163 ?4.4 ? Conclusion............................................................................................................................166 ?5 ? A Better Approach .......................................................................................................169 ?5.1 ? Administrative decision-makers and section 1 of the Charter.........................................170 ?5.2 ? Recommended approach ....................................................................................................173 ?5.2.1 ? Relationship between administrative law and the Charter...........................................173 ?5.2.2 ? Administrative law approach........................................................................................175 ?5.2.3 ? Infringement of right ....................................................................................................177 ?5.2.4 ? Prescribed by law..........................................................................................................178 ?5.2.5 ? Reasonable and demonstrably justified: a structured proportionality framework........187 ?5.3 ? Application of the recommended approach......................................................................194 ?5.4 ? Benefits of the recommended approach ............................................................................199 ?6 ? Conclusion.....................................................................................................................201 ?Bibliography .......................................................................................................................204 ? vii ACKNOWLEDGEMENTS I am deeply indebted to my thesis supervisor, Professor Mary Liston, for her support, encouragement, and helpful feedback while writing this thesis. Professor Liston?s clarification of complex administrative law concepts and pithy explanations of the Canadian legal landscape and history were invaluable. I also owe my second reader, Professor Robin Elliot, a great debt for his support, and for providing clear and helpful feedback within short timeframes. I am very grateful for the understanding and support shown by both of my supervisors when my circumstances changed and my planned schedule was jettisoned. I express my gratitude for the generous financial support of the Law Foundation of BC?s Law Foundation Fellowship, which enabled me to not only concentrate on my LLM studies but also to contribute to the graduate law student community by taking the lead in organizing the annual graduate student conference and serving as the Law representative on the UBC Graduate Student Society Council. I would also like to thank my family for their moral support and encouragement throughout my studies. Special thanks are due to Anna, for her generous help with reading parts of my draft thesis and sourcing texts for me at the eleventh-hour. Thanks also to Elizabeth and Jacqs, who both gave helpful feedback on earlier versions of Chapter 4 and with whom I shared much-needed coffee/sanity breaks throughout my studies. Finally, my enduring love and gratitude to Matt for his unfailing encouragement, support, and optimism. I could not have done it without you. 1 1 INTRODUCTION The introduction of the Canadian Charter of Rights and Freedoms [the Charter]1 significantly expanded the role of the judiciary in reviewing both legislative and administrative action.2 Contemporary legislation is often skeletal in nature, with the detail of the law being fleshed out in regulations, rules, or ?expansive and vague grants of statutory discretion to administrative decision-makers?.3 Charter violations are also now typically removed from proposed legislation and regulations before enactment due to careful drafting and vetting.4 This reliance on discretionary decision-making, and the emphasis on the Charter in the drafting of legislation, means that Charter violations are more likely to arise as a result of discretionary administrative action, rather than appearing explicitly in the wording of a legislative or regulatory enactment.5 The approach taken to judicial review of administrative decisions that impact on Charter guarantees may therefore have a significant impact on the protection of individual rights and freedoms within Canada. Since the introduction of the Charter, the Supreme Court of Canada [the Court] has struggled with conceptualizing the relationship between administrative law and the Charter.6 In particular, uncertainty has persisted over the appropriate method or analytical approach to employ when reviewing discretionary administrative decisions that are challenged for unjustifiably infringing the Charter. The Court has diverged on whether the review should be 1 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 2 Peter W Hogg, Constitutional Law of Canada, 2011 student ed (Toronto, Ont: Carswell, 2011) at 36.4(a). 3 Audrey Macklin, ?Standard of Review: Back to the Future?? in Administrative Law in Context, 2d ed (Toronto: Emond Montgomery Publications, 2013) 279 at 318. 4 Proposed regulations and legislation undergoes a Charter vetting process by the minister of justice: Department of Justice Act, RSC 1985, c J-2 [Department of Justice Act], s 4.1. 5 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 147; Macklin, supra note 3 at 318. 6 See, for example, Gratton & Sossin, supra note 5; Evan Fox-Decent & Alexander Pless, ?The Charter and Administrative Law: Cross-Fertilization or Inconstancy?? in Lorne Mitchell Sossin & Colleen M Flood, eds, Administrative Law in Context, 2d ed (Toronto: Emond Montgomery Publications, 2013) 407. 2 carried out under a ?Charter approach?, or using an ?administrative law approach?. The ?Charter approach? to review involves consideration of whether the guaranteed right or freedom has been infringed and the use of the ?Oakes test? to determine whether the exercise of statutory discretion complies with s. 1 of the Charter.7 The Oakes test is a structured proportionality analysis, which requires that any limit on a right: is in pursuit of a sufficiently important objective; is rationally connected to the objective; minimally impairs the right; and does not have disproportionate effect.8 The alternative method, the ?administrative law approach?, refers to the application of an administrative law analysis in assessing whether the administrative decision-maker took sufficient account of the Charter right.9 In those cases adopting an administrative law approach, the Court has also applied different standards of review, at times reviewing the decision on a reasonableness standard and at others applying a correctness standard.10 In the recent case of Dor? v Barreau du Qu?bec (Dor?),11 the Court attempted to resolve the debate about how the courts should review administrative decisions that impact on Charter 7 See, for example, Slaight Communications Inc. v Davidson,  1 SCR 1038; Ross v New Brunswick School District No. 15,  1 SCR 825; Eldridge v British Columbia (Attorney General),  3 SCR 624; Eaton v Brant County Board of Education,  1 SCR 241; Multani v Commission Scolaire Marguerite-Bourgeoys, 2006 SCC 6; Greater Vancouver Transportation Authority v Canadian Federation of Students - British Columbia Component, 2009 SCC 31. 8 See R v Oakes,  1 SCR 103 at 138?139; Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 104. 9 This approach was followed in Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817; Trinity Western University v British Columbia College of Teachers,  1 SCR 772; Chamberlain v Surrey School District No. 36,  4 SCR 710; Pinet v St. Thomas Psychiatric Hospital,  1 SCR 528; Lake v Canada (Minister of Justice), 2008 SCC 23. 10 Reasonableness and correctness are now the two standards of administrative law review in Canada: Dunsmuir v New Brunswick, 2008 SCC 9 at paras 32?34, 43?45. For reasons of deference to the competence, expertise, and constitutional legitimacy of administrative bodies, the courts typically adopt a ?reasonableness? rather than a ?correctness? standard of review. Under a reasonableness test, the court assesses whether the legislative or executive decision falls within a range of justifiable outcomes. A decision is reasonable if it is supported by reasons and is open to justification. Under a correctness test, the court assesses whether the legislative or executive decision is the correct one, which may involve substituting its view for that of the primary decision-maker. 11 Dor? v Barreau du Qu?bec, 2012 SCC 12. The Dor? case was brought by a lawyer who was reprimanded by his regulatory association for writing a critical letter to a trial judge (calling him, among other things, ?loathsome?, ?arrogant?, ?fundamentally unjust?, ?having a chronic inability to master any social skills?, and being ?pedantic, aggressive and petty?). The lawyer challenged the decision as a violation of his right to freedom 3 rights or freedoms.12 The Dor? case arose out of a conflict between a lawyer and a judge. The appellant, Mr. Gilles Dor?, was a lawyer practising in Qu?bec. Mr. Dor? appeared before Boilard J on a case, during which Boilard J made disparaging comments about Mr. Dor?.13 Mr. Dor? then wrote a private letter to Boilard J,14 in which he called the judge ?loathsome?, ?arrogant? and ?fundamentally unjust?, and accused him of ?hiding behind his status like a coward?, ?having a chronic inability to master any social skills?, being ?pedantic, aggressive and petty?, and having a propensity to use his court to ?launch ugly, vulgar and mean personal attacks?.15 Boilard J filed a complaint against Mr. Dor? with the Barreau du Qu?bec based on this letter alleging that Mr. Dor? had violated art. 2.03 of the Code of Ethics of Advocates (which stated that the conduct of advocates ?must bear the stamp of objectivity, moderation and dignity?).16 The Disciplinary Council of the Barreau rejected Mr. Dor??s argument that that art. 2.03 violated his Charter right to freedom of expression,17 and found that the letter had been in breach of art. 2.03. The Council reprimanded Mr. Dor? and suspended his ability to practise law for 21 days.18 Mr. Dor? appealed the Council?s decision. The Supreme Court upheld the Council?s decision, and took the opportunity to clarify the methodological approach the courts should take to determine whether administrative decision-makers have exercised their statutory discretion in accordance of expression. 12 Fox-Decent & Pless, supra note 6 at 423. 13 During the hearing, Justice Boilard said, referring to Mr. Dor?: ?an insolent lawyer is rarely of use to his client?. In his written reasons, Boilard J accused Mr. Dor? of ?bombastic rhetoric and hyperbole? and said that the court must ?put aside? Mr. Dor??s ?impudence?. See Dor?, supra note 11 at para 9. (All quotes in regarding the case are translations from the judgment). 14 In this letter, Mr. Dor? wrote: ?I have chosen to write a letter as an entirely personal response to the equally personal remarks you permitted yourself to make about me. This letter, therefore, is from man to man and is outside the ambit of my profession and your functions.? He also noted as a postscript: ?As this letter is purely personal, I see no need to distribute it.? 15 The (translated) letter is reproduced in full in the Supreme Court judgment: see Dor?, supra note 11 at para 10. 16 Code of ethics of advocates, RRQ 1981, c b-1, r 3 (Qu?bec) [Code of Ethics]. 17 Charter, supra note 1 at s 2(b). 18 See Bernard c Dor? (Penalty Decision), 2006 CanLII 53416 (Barreau du Qu?bec, Disciplinary Committee) (available on http://www.canlii.org/fr/qc/qccdbq/doc/2006/2006canlii53416/2006canlii53416.html) at paras 148?170. 4 with Charter protections. The Court held that judicial review in such cases should proceed in accordance with an administrative law approach. The Court declared that it is unnecessary to undertake the structured proportionality analysis required by the Oakes test in order to protect Charter values.19 Further, the administrative law review should proceed on a reasonableness standard of review (if that would otherwise be the applicable review standard for that decision).20 In conducting the review, courts must assess whether the administrative decision reflects a ?proportionate balancing of the Charter protections at play?.21 The decision will be found to be reasonable if the decision-maker ?has properly balanced the relevant Charter value with the statutory objectives?.22 1.1 Overview and structure of thesis Different but related problems arise from the Dor? decision and earlier jurisprudence reviewing rights-limiting administrative decisions, including: (1) whether Charter issues require review only according to constitutional methods; (2) whether Charter issues may be addressed through non-constitutional methods (such as an administrative law approach); (3) if 1 and 2 are not mutually exclusive, in which order matters should be addressed (for example, administrative law analysis followed by a Charter review); and (4) whether there is a unity between the branches of public law in the constitutional state. Although the Dor? decision has resolved some of the uncertainty about the courts? approach to reviewing the constitutionality of administrative decisions, the Court has left many issues unresolved.23 This 19 Dor?, supra note 11 at para 35. 20 The Court confirmed that reasonableness remains the applicable review standard for disciplinary decisions and ?the fact that Charter interests are implicated does not argue for a different standard?: Ibid at para 45. 21 Ibid at para 57. 22 Ibid at para 58. 23 See Colleen M Flood & Jennifer Dolling, ?An Introduction to Administrative Law: Some History and a Few Signposts for a Twisted Path? in Lorne Mitchell Sossin & Colleen M Flood, eds, Administrative Law in Context, 2d ed (Toronto: Emond Montgomery Publications, 2013) 1 at 33; Mary Liston, ?Governments in Miniature: The Rule of Law in the Administrative State? in Lorne Mitchell Sossin & Colleen M Flood, eds, Administrative Law in Context, 2d ed (Toronto: Emond Montgomery Publications, 2013) 39 at 80; Macklin, supra note 3 at 318; 5 thesis explores the uncertainty in Canadian public law arising from the Court?s direction in Dor? that judicial review of administrative discretionary decisions impacting on Charter guarantees should undertake a proportionality analysis that differs from the structured proportionality analysis of the Oakes test.24 In the Dor? case before the Supreme Court, as the fact that the Council?s decision infringed the Charter guarantee to freedom of expression was not in issue (the issue was instead whether the infringement on freedom of expression was justified), the Court did not examine the approach to be taken in cases where there is a dispute as to whether the Charter is infringed by an administrative decision. Therefore this thesis focuses on the approach to judicial review of discretionary decisions that do infringe upon a Charter guarantee, and the issue is therefore whether that infringement is justified. Likewise, as the Dor? approach applies to discretionary decision-making (not to rules or orders or regulations),25 this thesis does not focus on the approach to judicial review of non-discretionary decisions such as decisions made according to a rule, although this approach is discussed in relation to the implications of the Dor? decision. This thesis also does not deal with the contentious issue of whether proportionality should be a freestanding ground of review within administrative law.26 The thesis proceeds in six parts: In this introductory chapter, I have briefly introduced the subject of the thesis, and discussed the key concepts explored in later chapters. Chapter 2 provides a historical overview of the relationship between the Charter and administrative law, Sheila Wildeman, ?Pas de Deux: Deference and Non-Deference in Action? in Lorne Mitchell Sossin & Colleen M Flood, eds, Administrative Law in Context, 2d ed (Toronto: Emond Montgomery Publications, 2013) 323 at 362; Fox-Decent & Pless, supra note 6 at 425?437. 24 Dor?, supra note 11 at para 35. 25 Administrative discretion emerges from legislative provisions indicating an official ?may? take certain action, thereby effectively delegating authority to the judgment of that official. The ambit of administrative discretion may be viewed as the ?space ... between the legislature?s word and the execution of the word?: Cartier, Genevi?ve, ?The Baker Effect: A New Interface Between the Canadian Charter of Rights and Freedoms and Administrative Law ? The Case of Discretion? in David Dyzenhaus, ed, The Unity of Public Law (Portland, Oregon: Hart Publishing, 2004) 61 at 84. 26 See Aaron Baker, ?Proportionality? in Judicial Review, 4th ed (London: LexisNexis, 2010) 241 at 287?291. 6 as articulated by the Court over time. Chapter 3 explores the Dor? case, the rationale for the approach adopted in that case, and the nature of the proportionality analysis adopted. Chapter 4 turns to the potential implications of the Dor? approach, in particular, the potential for inadequate justification of decisions impacting on Charter values and concerns about its impact on fundamental rule of law values. In Chapter 5, I suggest a methodological approach to review of administrative decisions engaging Charter protections that addresses these concerns, better reflects Charter values, and improves coherence between administrative and constitutional branches of public law. Chapter 6 offers some concluding comments. I argue that it is questionable whether the Dor? approach will provide adequate justification for decisions impacting on Charter rights. In particular, the Court?s adoption of a reasonableness standard and rejection of a structured proportionality analysis raises concerns that the Dor? approach will not ensure adequate justification for decisions that limit Charter rights. Furthermore, the approach taken in Dor? risks disregard for the key rule of law values of certainty, accessibility, and predictability of law. That approach to review unjustifiably draws a distinction between ?laws? and ?decisions?, and does not ensure that sufficient constraints on broad grants of discretion exist. I conclude that, while review within an administrative law framework is advantageous, the Dor? approach does not accord with the key requirements set out in s. 1 of the Charter that any limitation on Charter guarantees be prescribed by law and reasonable and demonstrably justified. I therefore propose some modifications to the Dor? approach to ensure rights-infringing administrative decisions comply with s. 1 of the Charter and ensure that rights-limiting administrative decisions are ?prescribed by law?, ?reasonable? and ?demonstrably justified in a free and democratic society?. My recommended approach requires that the reviewing court ensure that a rights-limiting decision meets the key rule of law principles 7 underlying the s. 1 ?prescribed by law? requirement. It also requires the court to scrutinize the decision in a more rigorous manner than the review the Court undertook in Dor?. To ensure that the rights-limitation is reasonable and demonstrably justified, the court should require the administrative decision-maker to provide reasons for his or her decision, which the court would use as a basis for carrying out a structured proportionality analysis. While this approach may involve a more interventionist approach to reasonableness review than usual, this modified approach will better respect and protect the fundamental values set out in the Charter. The recommended analytical framework also allows for constitutional and administrative law to be integrated, avoiding bifurcation of these two interrelated branches of public law. 1.2 Fundamentals of administrative law and the Charter To ensure a solid foundation for understanding the subsequent analysis, it is helpful to briefly explain the fundamentals of administrative law review and review under the Charter. Administrative review and constitutional review both play a role in managing the complex balance of power between the branches of government: the legislature, the judiciary, and the executive (which includes administrative entities). A constitution is the regime which forms the foundation of the state, and is the ultimate legal source of the powers and duties of the state. The Canadian written constitution includes the Constitution Act, 1982 (Part 1 of which is the Charter),27 and the Constitution Act, 1867.28 However, the Canadian Constitution is more than just the formal written constitution. The written constitution is ?the skeleton ? not the whole body?: the ?flesh, the muscles, the sinews, the nerves of our Constitution have been 27 See The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act, 1982] at s 52(2). 28 The Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 [Constitution Act, 1867]. 8 added by legislation ? by custom ? by judgements of the courts ? and by agreements between the national and provincial governments?.29 1.2.1 Administrative law The origins of judicial review of administrative decisions in common law countries lie in the old English ?prerogative writs?, which were a form of remedy for inappropriate administrative action or inaction.30 In Canada, the sources of the courts? power to review administrative decisions are:31 1. ?Original jurisdiction?: ordinary courts have jurisdiction over administrative decisions when such a decision is challenged by way of a direct action by a citizen in contract or tort on the ground that the state has infringed an individual?s private legal right;32 2. ?Statutory right of appeal?: courts have jurisdiction where a statutory right of appeal is provided for in the governing statute; and 3. ?Court?s inherent judicial review jurisdiction?: superior courts have an inherent jurisdiction to review administrative decision-making, at least with respect to questions of jurisdiction. The legislature cannot purport to remove the courts? judicial review jurisdiction altogether. In Dunsmuir v New Brunswick [Dunsmuir], the Court explained that the inherent power of superior courts to review administrative action, and to ensure that it does not exceed its 29 Eugene Forsey, How Canadians Govern Themselves, 8th ed (Ottawa: Minister of Public Works and Government Services Canada, 2012) at 10. 30 These writs include certiorari (through which a court may quash the decision of an administrator and order that the decision be made again), prohibition (a form of injunction preventing a decision-maker from hearing a case), and mandamus (an order to compel a decision-maker to exercise their jurisdiction): see Harry Woolf, De Smith?s Judicial Review, 6th ed (London: Sweet & Maxwell, 2007) at 45. 31 Flood & Dolling, supra note 23 at 16?17. 32 See, for example, T1T2 Limited Partnership v Canada, 1995 CanLII 7042 (Ont Gen Div). In that case, the Ontario Court (General Division) granted a declaration that the Liberal government had breached a contract in cancelling the agreement made by the previous Progressive Conservative government with developers for the renovation and privatization of an international airport. 9 jurisdiction, stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867.33 Judicial review of administrative action is therefore constitutionally guaranteed, particularly with regard to the definition and enforcement of jurisdictional limits.34 The basis for this constitutional protection of judicial review is the courts? role in preserving the rule of law.35 The rule of law principle requires that all exercises of public authority must find their source in law,36 and the courts must therefore ensure that public authorities do not overreach their lawful powers.37 It has been said that the Constitution ?is the latticework on which the vines of the administrative state and administrative law grow?.38 Essentially, ?administrative law? concerns the supervision by the courts of decision-making pursuant to statute or the royal prerogative,39 with the goal of ensuring the legality, reasonableness and fairness of the administrative process and its outcomes.40 Over time, the Court has moved away from the traditional (or formalist/positivist) conception of administrative law as limited to scrutinizing the relationship between a government decision and its enabling legislation in order to protect democratic accountability (in other words, ensuring administrators are acting in compliance with legislation).41 Instead, the Court has moved toward a model of judicial review within administrative law that is characterized by a focus on the respectful deference on the part of the judiciary to administrative decision-makers? expertise,42 and a modern (or ?functionalist?43) approach. 33 Dunsmuir, supra note 10 at para 31. See Constitution Act, 1867, supra note 28, ss 96?101. 34 See Crevier v A.G. (Qu?bec) et al,  2 SCR 220 at 234?238; U.E.S., Local 298 v Bibeault,  2 SCR 1048 at 1090. 35 Bibeault, supra note 34 at 1090; Dunsmuir, supra note 10 at para 27. 36 Dunsmuir, supra note 10 at para 28. 37 Ibid at para 29. 38 Flood & Dolling, supra note 23 at 5. 39 Ibid. 40 Dunsmuir, supra note 10 at para 28. 41 See, for example, Susan L Gratton, ?Standing at the Divide: The Relationship between Administrative Law and the Charter Post-Multani? (2008) 53 McGill LJ 477 at 511. 42 See Macklin, supra note 3 at 288. 43 Sheila Wildeman, Romancing Reasonableness: An aspirational account of the Canadian case law on judicial 10 The modern approach views judicial review as a means of upholding the rule of law,44 and the judicial role in reviewing administrative decisions as an expression of a wider constitutional project shared among the legislative, judicial and executive/administrative branches of government. This constitutional project can be considered one of public justification by all branches, whereby judicial review verifies that state action is grounded in law and can be publically justified as such.45 In this model of constitutional ordering, all three branches of government participate in working out the legal norms governing the exercise of state power,46 and in the determination of the values or principles that are considered fundamental to society.47 Linked to this is the recasting, or reinterpretation, of the principle of deference in administrative law and how it informs institutional relations. The idea of ?deference as respect?,48 as articulated by David Dyzenhaus, has been endorsed by the Court in a number of cases.49 In Dunsmuir, the Court adopted this characterization when conducting review on a review of substantive administrative decisions (LLM Thesis, University of Toronto (Canada), 2011) [unpublished] at 3?4. This model can be contrasted with the Diceyan model of the administrative state informed the traditional approach to judicial review of administrative action, with its view of the judicial role as ensuring administrative decision-makers remain within the limits of the law: see Liston, supra note 23 at 43?44, 49; Wildeman, supra note 23 at 326. Some judges do, however, take a more formalist vision of the separation of powers: see, for example, Alberta (Information and Privacy Commissioner) v Alberta Teachers? Association, 2011 SCC 61 at paras 90?104, Cromwell J. 44 Dunsmuir, supra note 10 at para 29. 45 Wildeman, supra note 23 at 325. For further exploration of the role of justification, see below Section 18.104.22.168.3. 46 David Dyzenhaus, ?Constituting the Rule of Law: Fundamental Values in Administrative Law? (2001) 27 Queen?s LJ 445 at 487?489. 47 Ibid at 451, 453 and 501. See also Peter M Hogg, Allison A Bushell Thornton & Wade K Wright, ?Charter Dialogue Revisited - or Much Ado about Metaphors? (2007) 45 Osgoode Hall LJ 1 at 30. 48 Dyzenhaus explains deference as respect as requiring ?a respectful attention to the reasons offered or which could be offered in support of a decision? and that weight be given to the opinion of the decision-maker, rather than merely submission to the authority of the legislature or administrative agency. This can be contrasted with ?deference as submission?, which occurs when courts submit to the authority of the decision-maker: David Dyzenhaus, ?The Politics of Deference: Judicial Review and Democracy? in The Province of Administrative Law (Oxford: Hart Publishing, 1997) 279 at 286. This conception rejects the formal vision of the separation of powers which rigidly distinguishes between the different functions of the legislature (making law), executive (implementing law) and judiciary (interpreting law): Dyzenhaus, supra note 46 at 450. 49 See Baker, supra note 9 at paras 48, 65; Newfoundland and Labrador Nurses? Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 13; Dunsmuir, supra note 10 at para 48. 11 ?reasonableness? standard.50 Following Dunsmuir, there are two standards of review in relation to the substance of a decision: correctness (that is, was it a correct decision according to the court?) and reasonableness (that is, does the decision fall within a range of reasonable alternatives?).51 Following Dunsmuir, the application of a correctness standard is required in four circumstances: questions of constitutional law and division of powers; a ?true question of jurisdiction? (in the sense of whether or not the tribunal had the authority to make the inquiry); a question of general law that is both of central importance to the legal system as a whole and outside the adjudicator?s specialized area of expertise; and questions regarding jurisdictional lines between two or more competing specialized tribunals.52 The justification for applying a correctness standard in these circumstances is based on rule of law values such as universality, consistency, uniformity, predictability, and stability.53 Despite the clarification regarding standards of review in Dunsmuir, the courts still struggle to achieve consensus on whether particular cases should attract a correctness or reasonableness standard of review.54 However, it appears that the courts? position is now one of deference (that is, reasonableness review) as the default position, unless one of the four circumstances listed above applies.55 50 Dunsmuir, supra note 10 at para 48. 51 Ibid at paras 32?34, 43?45. 52 Ibid at paras 58?61. See also Smith v Alliance Pipeline, 2011 SCC 7 at para 26. Whether ?true questions of jurisdiction? actually exist is the subject of some debate: see Alberta Teachers? Association, supra note 43 at paras 38?43. 53 Liston, supra note 23 at 74?75. 54 David Quayat, ?The Correctness Battle Rages: Alberta (Information and Privacy Commissioner) v. Alberta Teachers? Association? (2012) 25:2 Can J Admin L & Prac 179. See, for example, Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35. The majority held that the correctness standard of review should be applied in this case because the Society operates within statutory scheme under which both a tribunal and a court may decide the same legal question at first instance (see para 18-20). However, Abella J (in concurring reasons) held that the reasonableness standard of review should apply: she pointed out that ?If concurrent jurisdiction with the courts in interpreting and applying something as legally transcendent as the Charter does not affect the deference to which tribunals are entitled in interpreting their own mandate, surely it is hard to justify carving out copyright law for unique judicial ?protection?? (para 73). 55 Macklin, supra note 3 at 302. To identify the standard of review, the reviewing court first checks whether the jurisprudence has already ruled on the degree of deference applicable to the issues. If not, it is necessary to 12 Review according to a reasonableness standard requires that administrative decision-makers are accorded ?a margin of appreciation within the range of acceptable and rational solutions?, and the judicial role is to ensure the decision ?falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law?.56 The nature of the reasonableness standard of review is explored further in Section 3.3.3. 1.2.2 The Charter Before the enactment of the Charter, the Court reviewed federal and provincial legislation to ensure that the division of legislative power between the federal and the provincial governments was respected, as well as enforcing other components of the Constitution Act, 1867.57 With the adoption of the Charter, the Court took on a new role in determining the validity of governmental action, both federal and provincial, to ensure the protection of the rights and freedoms guaranteed by the Charter.58 The Charter applies:59 (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. The Charter therefore operates as a limitation on the powers of the legislative and executive branches of government. The combination of s. 52 of the Constitution Act, 1982,60 and s. 24(1) of the Charter,61 establish that the violation of the rights and freedoms guaranteed by the Charter gives rise to a remedy, and therefore grant the judiciary the power to review the constitutionality of laws. analyze the factors set out in Dunsmuir: the presence or absence of a privative clause, the nature of the question at issue, and the nature and level of expertise of the tribunal: Dunsmuir, supra note 10 at paras 52?55, 62?64. 56 Dunsmuir, supra note 10 at para 47. 57 For example, Constitution Act, 1867, supra note 28, ss 96?100, 125 and 133. 58 See Charter, supra note 1, ss 52 and 24. 59 Ibid, s 32. 60 Constitution Act, 1982, supra note 27, s 52(1). 61 Charter, supra note 1, s 24. 13 Section 52 of the Constitution Act, 1982 provides that the Constitution (which includes the Charter)62 is ?the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect?.63 The courts have granted a range of remedies for breaches of the Constitution, including: striking down or declaring invalid particular laws; severing offending parts of provisions; reading in omitted words or reading down the scope of a limitation on a right; authorizing exemptions from particular laws; and temporarily suspending a declaration of invalidity.64 Section 24 of the Charter provides that a person claiming his or her Charter rights or freedoms have been infringed ?may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just?. Remedies granted under s. 24(1) include: declarations,65 costs,66 and damages,67 as well as the common law prerogative writs. The purpose of judicial review under the Charter is thus to protect individuals from unjustified infringements by the state of the fundamental rights and freedoms set out in the Charter and to enable the reviewing court to craft an appropriate remedy in the event that such an infringement is held to have occurred.68 Throughout this thesis, I use ?Charter rights? as shorthand for the rights and freedoms guaranteed by the Charter, and ?Charter guarantees? to refer to the rights and freedoms guaranteed in the Charter as well as the guarantee that these rights will only be limited under certain conditions (as contained in s. 1). The term ?Charter values? encompasses the interests 62 See Constitution Act, 1982, supra note 27, s 52(2)(a). 63 Ibid, s 52(1). 64 See Hogg, supra note 2 at 40.1. 65 Canada (Prime Minister) v Khadr, 2010 SCC 3. 66 R v 974649 Ontario Inc., 2001 SCC 81. 67 Damages have been held to be an appropriate and just remedy when they serve to compensate the victim for his or her loss, and to vindicate Charter rights and to deter future Charter breaches: Vancouver (City) v Ward, 2010 SCC 27 at para 25. However, s. 24(1) is treated as a remedy of last resort, to be invoked only where a Charter breach cannot be remedied by the application of the general law: Hogg, supra note 2 at 40.2(g.5). 68 Hunter et al v Southam Inc,  2 SCR 145 at 156. 14 and principles that are referenced in s. 1 of the Charter,69 as well as the rights and freedoms guaranteed by ss. 2-23 of the Charter. ?Proportionality? is another term that has several meanings depending on the context, and that is the subject of much debate as an analytical and methodological doctrine to evaluate the limitation of rights. 1.3 Proportionality Proportionality has emerged, globally, as the leading framework for evaluating the legitimacy of limits on rights.70 In Canada, the Court adopted the concept of proportionality as the method of analysis when evaluating the limitation of rights under s. 1 of the Charter)71 in the 1986 case of R v Oakes.72 Section 1 of the Charter provides that Charter rights are subject to ?such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society?. In R v Oakes, the Court laid down the criteria that must be satisfied to establish that a limit on a Charter right is justified under s. 1.73 First, the objective of the limiting measure must be sufficiently important to warrant overriding a constitutionally protected right or freedom. Once a sufficiently important objective is recognized, the party invoking s. 1 must satisfy a proportionality analysis with reference to this objective by 69 The Court uses values interchangeably with interests and principles: Mark Antaki, ?The Turn to ?Values? in Canadian Constitutional Law? in The Limitation of Charter Rights: Critical Essays on R v Oakes (Montreal: ?ditions Th?mis, 2009) 155 at 173. The values embodied in s. 1 of the Charter include the rule of law principles underlying the requirement that a limitation be ?prescribed by law?, and the values and principles of a free and democratic society as encompassed in the requirement that a limitation be ?demonstrably justified in a free and democratic society?. 70 Alec Stone Sweet & Jud Mathews, ?Proportionality Balancing and Global Constitutionalism? (2008) 47 Colum J Transnat?l L 72; Mattias Kumm, ?The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review? (2010) 4:2 Law & Ethics of Human Rights 142 at 142. The concept of proportionality in has been accepted in a number of countries, including: Argentina, Australia, Belgium, Brazil, Canada, Chile, Columbia, England, France, Greece, Hong Kong, India, Ireland, Italy, Mexico, New Zealand, Peru, Portugal, South Africa, Spain, Switzerland, Turkey: see Aharon Barak, Proportionality: Constitutional Rights and their Limitations, Cambridge Studies in Constitutional Law (Cambridge, UK; New York: Cambridge University Press, 2012) at 187?201; Moshe Cohen-Eliya & Iddo Porat, ?Proportionality and the Culture of Justification? (2011) 59 Am J Comp L 463 at 465. 71 Charter, supra note 1. Section 1 provides that the Charter ?guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society?. 72 Oakes, supra note 8 at 138?139. 73 Ibid. 15 showing that the measures adopted to achieve the objective are reasonable and demonstrably justified.74 As noted above, the next three steps of the Oakes test require that: the measures adopted are rationally connected to the objective in question; the measures impair the right as minimally as possible; and there is proportionality between the objective and the effects of the measures, including between the deleterious and the salutary effects of the measures. There are two key ways in which a proportionality analysis may be applied: as a test of fair balance (in the sense of ensuring the outcome does not disproportionately impact on an individual?s rights) or as a structured test to examine whether interference by a public authority with a fundamental interest can be justified.75 Proportionality as a fair balance test may be implicit in existing categories of unreasonableness in administrative law, such as failure to take into account a relevant consideration or an unreasonably onerous or oppressive decision.76 The Oakes test is an application of the second form of proportionality (a structured test), as the courts examine whether legislation infringing on a Charter guarantee is justified by applying a four-step analysis. The Oakes test thus sets up a process of ?reasoned demonstration?,77 with the onus on the government to demonstrate that a rights-limiting measure is justified. The advantages and disadvantages of using a structured proportionality analysis such as the Oakes test are, however, debated. 1.3.1 Benefits and criticisms of a structured proportionality test 22.214.171.124 Benefits of a structured proportionality framework The key benefits of the proportionality framework are said to be that it: ?stresses the need to always justify limitation on human rights; it structures the mind of the balancer; it is 74 Ibid at 139. 75 Woolf, supra note 30 at 585?588. 76 See, for example, Baker, supra note 9. 77 RJR-MacDonald Inc. v Canada (Attorney General),  3 SCR 199 at para 129. 16 transparent; it creates a proper dialog between the political branches and the judiciary; and it adds to the objectivity of judicial discretion?.78 Proportionality analysis is seen as reducing conflicts of interest and reliance on considerations that are irrelevant or unethical,79 and ensuring the pertinent considerations are weighed in their proper context.80 If a judge manipulates the proportionality framework to produce the desired result, some argue that this ?distortion to the legal truth is evident in the written judgment?.81 Objectivity, and better decision-making, is thus seen as being enhanced by the structure and discipline provided by the proportionality analysis.82 Further, the structure of the proportionality framework, properly adhered to, is seen to have ?the great advantage? of explicitness: the test?s discrete steps assist the court to state exactly how a measure runs afoul of the proportionality inquiry.83 A framework for a proportionality analysis, such as that set out in the Oakes test, is therefore viewed as helpful in resolving the difficult question of whether a rights-limiting measure is reasonable and demonstrably justified in a free and democratic society. However, not everyone agrees that a structured proportionality analysis is beneficial, and concerns have been raised about various aspects of the Oakes test and proportionality frameworks in general. 78 Aharon Barak, ?Proportionality and Principled Balancing? (2010) 4:1 Law & Ethics of Human Rights 1 at 14?15. 79 Barak, supra note 70 at 463. 80 Ibid at 464. 81 Amir Attaran, ?A Wobbly Balance - A Comparison of Proportionality Testing in Canada, the United States, the European Union and the World Trade Organization? (2007) 56 UNBLJ 260 at 262. 82 Kent Roach, ?Section 7 of the Charter and National Security: Rights Protection and Proportionality versus Deference and Status? (2010) 42 Ottawa L Rev 337 at 341. 83 Jamie Cameron, ?The Original Conception of Section 1 and Its Demise: A Comment on Irwin Toy Ltd. v. Attorney-General of Quebec? (1989) 35 McGill LJ 253 at 265. 17 126.96.36.199 Criticisms of proportionality frameworks 188.8.131.52.1 Critiques relating to the Court?s deferential application of the Oakes test The Court has developed techniques for interpreting the Oakes test that are criticized for diluting the test and thereby showing too much deference to the government.84 As explored further below (see Section 184.108.40.206.1), these techniques include deferring to the legislative and executive branches of the state in certain types of cases, emphasizing the importance of context in applying the test, and relaxing the standard of proof. Each of these techniques can result in the Court taking what some view as an inappropriately deferential approach. Critics of the Court?s deferential approach to the Oakes test have argued that it has no foundation in the language or structure of the Charter.85 The language of s. 1, particularly the requirement that any limits on rights be ?reasonable? and ?demonstrably justified?, is suggestive of a stringent justification requirement. Further, the judiciary is regarded as an institution that has the tools to impose rationality and reasonableness on other authorities, since it is relatively immune from populism and therefore is more attuned to principled and analytical reasoning.86 The Court?s deference in some cases is therefore accused of being ?misplaced and highly inappropriate?.87 Deference can also be seen as providing judges with discretion in circumstances where discretion is unwarranted.88 Thus deference is cast as simply ?the code word for results-oriented reasoning?,89 a concept that courts resort to in order 84 Christopher Bredt & Adam M Dodek, ?The Increasing Irrelevance of Section 1 of the Charter? (2001) 14 Sup Ct L Rev, online: <https://pi.library.yorku.ca/ojs/index.php/sclr/article/view/34773> at 187. 85 Sara Weinrib, ?The Emergence of the Third Step of the Oakes Test in Alberta v. Hutterian Brethren of Wilson Colony? (2010) 68 UT Fac L Rev 77 at 91. 86 Cohen-Eliya & Porat, supra note 70 at 480. In contrast, Weinstock suggests that the Oakes test has the potential to vest a disproportionate amount of authority in courts, and there are ?moral, epistemic and psychological reasons? for doubting that courts are up to the task of defining rights and their limits: Daniel M Weinstock, ?Philosophical Reflections on the Oakes Test? in The Limitation of Charter Rights: Critical Essays on R v Oakes (Montreal: ?ditions Th?mis, 2009) 115 at 128. 87 Christopher D Bredt, ?The Right to Equality and Oakes: Time for Change? (2009) 27 NJCL 59 at 63. 88 Barak, supra note 70 at 399. 89 Bredt, supra note 87 at 63. 18 to ?ramp up or down the stringency? of the Oakes test,90 resulting in ?an unpredictable jurisprudence?.91 The Court?s reliance on ?context? has likewise been criticized for turning adjudication into a ?highly subjective exercise with little predictability?.92 Some argue that it would be an abdication of the courts? constitutional responsibility to yield its authority to make decisions about the balance between rights and the public interest to the legislature or any other body.93 The basis for this position is a conception of the judicial role as interpreters of the law and the ability of the judiciary to achieve harmony within the legislative and constitutional frameworks.94 If the constitution were interpreted in accordance with the reasonableness of the interpretation offered by other governmental branches, this would lead to inconsistent interpretations and therefore ?anarchy within the system?.95 Deference is also potentially problematic because it results in the interpretive acts of judges aligning with the acts and interests of those in control,96 which risks the courts deferring in cases of measures that are insensitive to individual or minority rights.97 The deferential approach is criticized for ignoring the Charter?s purpose of withdrawing certain interests (constitutional rights and freedoms) from the ordinary political process.98 The Court?s approach to deference within the Oakes test has also been criticized for not adequately taking into account the democratic legitimacy of the challenged legislation.99 90 Ibid at 66. 91 Hogg, supra note 2 at 38.11(b). 92 Bredt & Dodek, supra note 84 at 185. 93 See Barak, supra note 70 at 393?395; T R S Allan, ?Human Rights and Judicial Review: A Critique of Due Deference? (2006) 65 Cambridge LJ 671. 94 Barak, supra note 70 at 394. 95 Ibid. 96 Robert M Cover, ?Foreword: Nomos and Narrative? (1983) 97 Harv L Rev 4 at 57. 97 Richard Moon, ?Justified Limits on Free Expression: The Collapse of the General Approach to Limits on Charter Rights? (2002) 40 Osgoode Hall LJ 337 at 358. 98 Lorraine E Weinrib, ?Canada?s Charter of Rights: Paradigm Lost?? (2001) 6 Rev Const Stud 119 at 173. 99 Alana Klein, ?Section 7 of the Charter and the Principled Assignment of Legislative Jurisdiction? (2012) 57 Sup Ct L Rev 59 at 70. Arguably, the executive does not have the same degree of democratic legitimacy as the legislature, and therefore the executive should be accorded less judicial deference than the legislature. On this view, the courts should therefore be more hesitant to find a breach of constitutional rights in legislation than in 19 A highly deferential approach by the courts is therefore viewed as disregarding the stringent terms of the limitation clause in the Charter, as well as permitting the courts to abdicate their constitutional responsibilities and ignore the role accorded to them by the people.100 Extensive emphasis on deference, context, and varying standards of proof risks undermining the benefits of proportionality as an analytical tool and introduces an unwarranted measure of discretion into judicial decision-making. 220.127.116.11.2 Critiques of a universal, two-stage approach The Court?s application of the Oakes test is also criticized for incorporating justificatory criteria into the definition of rights; for requiring a two-stage analytical approach that does not fit with some rights; and for unjustifiably adopting a universal test to the review of limits on rights. Judicial review under the Charter is a two-stage process whereby the court determines whether the challenged measure infringes on the Charter right then moves to consider whether the measure is justified under s. 1. However, particularly in cases dealing with rights that contain internal standards of reasonableness,101 the Court has developed internal balancing tests that result in much of the justification for the limitation occurring before the second stage of analysis (the Oakes test) is reached. In these cases, the analytical process does not distinguish between the definition of the right and the justification of limits on that right. administrative decisions: T R S Allan, ?Deference, Defiance, and Doctrine: Defining the Limits of Judicial Review? (2010) 60:1 UTLJ 41 at 53. 100 Weinrib, supra note 98 at 150, 170?171. As McLachlin J (as she then was) has stated: ?To carry judicial deference to the point of accepting Parliament's view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded.?: RJR-MacDonald, supra note 77 at 132. See also Chaoulli v Quebec (Attorney General),  1 SCR 791 at para 87, Deschamps J. 101 For example, s. 7 contains the not to be deprived of right to life, liberty and security of the person ?except in accordance with the principles of fundamental justice?, and s. 8 guarantees the right to be secure against ?unreasonable? search or seizure: Charter, supra note 1. See also ss. 6, 9 and 11. These rights may be contrasted with those in ss. 2, 3 and 14, which do not contain limiting language. 20 Incorporation of justificatory criteria into the act of defining the scope of the right has been criticized for shifting the evidentiary burden onto the party alleging a rights violation;102 risking a less stringent standard of justification than that required by the Oakes test;103 and obscuring the Court?s value-based choices.104 In some cases, the standards of internal reasonableness are interpreted very similarly to the standards set out in the Oakes test.105 However, the Court?s application of these standards has been criticized for being ?very deferential?,106 and the Court generally either does not consider the steps set out in the Oakes test or applies the test in a cursory fashion.107 This has led to criticism that the Court?s reasoning in this stage is ?more result-oriented than principled?.108 The Court?s incorporation of justificatory criteria in defining the scope of the right has also been criticized for obscuring 102 Bredt, supra note 87 at 70?71; Hart Schwartz, ?Making Sense of Section 15 of the Charter? (2011) 29:2 NJCL 201 at 227; Jennifer Koshan & Jonnette Watson Hamilton, ?Meaningless Mantra: Substance Equality after Withler? (2011) 16 Rev Const Stud 31 at 58, 61. 103 Hogg, supra note 2 at 38.13. See also Lavoie v Canada,  1 SCR 769 at para 49, McLachlin CJC, L?Heureux?Dub? and Binnie JJ, dissenting. 104 Cameron, supra note 83; Bredt & Dodek, supra note 84 at 187; Bradley W Miller, ?Justification and Rights Limitations? in Grant Huscroft, ed, Expounding the Constitution: Essays in Constitutional Theory (Cambridge; New York: Cambridge University Press, 2008) 93 at 100. 105 For example, the Court has held that an ?arbitrary? deprivation of life, liberty and security under s. 7 is defined as a deprivation that ?bears no relation to, or is inconsistent with, the objective that lies behind [it]?: (Chaoulli, supra note 100 at para 130), and perhaps even requiring necessity. In Chaoulli, three justices preferred an approach that asked whether a limit was ?necessary? to further the state objective: Ibid at para 131?132. Conversely, three other justices rejected the language of necessity, preferring the prior articulation of arbitrariness as where a deprivation of a right ?bears no relation to, or is inconsistent with, the state interest that lies behind the legislation?: Ibid at para 232, Binnie, LeBel and Fish JJ, dissenting. The Court also asks whether the effect of the limit on the right is ?grossly disproportionate? to the benefit obtained by the measure: Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 at para 133. As explained below (see Section 3.4.3), these steps closely resemble the Oakes test. 106 See 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 at 531. 107 Chaoulli, supra note 100 at paras 154?157; Canada v PHS, supra note 105 at para 137. This eclipse of the Oakes test occurred with the review of s. 15(1) equality rights. The relational character of the right to equality, and the requirement that the courts consider the needs and circumstances of persons and groups in addition to the claimant, resulted in the Court importing s. 1-like justification considerations into the s. 15 analysis: see Richard Moon, ?Accommodation Without Compromise: Comment on Alberta v. Hutterian Brethren of Wilson Colony? (2010) 51 Sup Ct L Rev 95 at 113?114; Miller, supra note 104 at 99?100; Schwartz, supra note 102 at 211, 223?224, 227?228; Bredt, supra note 87; Koshan & Hamilton, supra note 102 at 58, 61. Accordingly, the first stage of the review considered contextual factors and the equivalent of the Oakes rational connection test (see Withler v Canada (Attorney General), 2011 SCC 12.), resulting in the second stage/Oakes test consisting merely of a repetition of the considerations that led to its decision on whether the measure is discriminatory: Moon, supra note 97 at 366. 108 Bredt & Dodek, supra note 84 at 187. 21 the choices that the Court would otherwise have to make more transparently under s. 1.109 The consideration of justificatory criteria in the first stage, when establishing whether the Charter right has been infringed, may also shift a significant evidentiary burden onto the party alleging a rights violation.110 The issues with incorporating justificatory criteria into the definition of rights are relied upon by those who challenge the Court?s adoption of a two-stage approach to rights-adjudication. While some suggest that it is preferable to keep the scope of the substantive rights clearly defined and distinct from the justification analysis,111 others argue that the two-stage approach to determining whether a rights-limiting measure is justified is problematic. In particular, the two-staged approach is an awkward fit for some rights, resulting in the Oakes test being applied in a very deferential way, the exclusion of relevant contextual factors in determining whether there has been a first-stage infringement, or a collapse of the entire enquiry into either the first or second stage.112 Separating the enquiry into two stages is therefore criticized for severing the question of reasonable limits on the right from the inquiry into the meaning and scope of the individual 109 Cameron, supra note 83. Miller suggests that although the language of ?defining? may suggest that the judge is making uncontroversial, value-free judgments, in reality the apparent judicial act of defining can obscure the value-laden and inevitably controversial nature of determining whether some legislation is discriminatory: Miller, supra note 104 at 100. 110 Bredt, supra note 87 at 70?71; Schwartz, supra note 102 at 227; Koshan & Hamilton, supra note 102 at 58, 61. 111 Bredt, supra note 87 at 70. The existence of s. 1 as a separate and distinct article of the Charter is relied upon to support this argument, as is the idea that undertaking a balancing test when defining the scope of the Charter right or freedom will inevitably lead to an understanding of that right or freedom that is weaker or narrower in scope: see Ibid at 71. 112 Moon contends that the two-step adjudicative model does not work for certain rights, in particular those that do not simply protect an individual?s autonomy or independence from interference by others: Moon, supra note 97 at 364?366. He explains that the two-step structure of Charter adjudication rests on the idea that rights protect different aspects of individual autonomy or liberty from state interference, and the Oakes test, in examining the ?balance? between the separate and competing interests, depends on the idea that Charter rights protect individual autonomy. He argues that some rights, such as freedom of expression, fit awkwardly within the two-step adjudicative model, and the strain on the Oakes test manifests itself in the broad definition of the freedom?s scope and the deferential approach to limits under s. 1. He suggests that this awkward fit has resulted in the Oakes test becoming ?increasingly vague and flexible, or, as the critics see it, eroded or undermined?: Ibid at 365. Similarly, Miller suggests that separating the decision-making process into two distinct stages results in either the exclusion of relevant contextual factors in determining whether there has been a first-stage infringement, or a collapse of the entire enquiry into either the first or second stage: Miller, supra note 104 at 98. 22 Charter guarantee, resulting in Charter guarantees being drained of their content and their underlying purposes and values being ignored.113 Critics accordingly urge the courts to ?abandon the myth of Oakes? universality?, and to develop a range of distinctive approaches to the question of reasonable limits, tailored to the particular right in question.114 18.104.22.168.3 Critiques of proportionality frameworks in general Some theorists claim that proportionality is the only way of resolving human rights issues because the very concept of human rights implies balancing and is inseparable from it.115 However, many scholars have criticized the adoption of a proportionality analysis (particularly the balancing involved in the ?proportionate effect? step), on the basis that it fails to adequately protect rights as supreme and non-violable, cannot be rational because the values balanced are ?incommensurable?, and perpetuates the fallacy of judicial objectivity. Many have criticized the Court?s Charter jurisprudence for failing to adequately protect rights.116 These criticisms often stem from differing philosophical or moral conceptions of human rights, or the relationship between rights and the public interest. Given that proportionality is designed to protect both human rights and the public interest, it fits well 113 Brian Slattery, ?The Pluralism of the Charter: Revisiting the Oakes Test? in The Limitation of Charter Rights: Critical Essays on R v Oakes (Montreal: ?ditions Th?mis, 2009) 13 at 23?25, 34?35. A rights-specific approach, it is argued, would instead develop a jurisprudence that is rooted in the social and political value of the protected right in each case, and the focus would be on whether the purposes behind the constitutional recognition are valuably served by its protection (rather than just whether the state has good reason to limit the right): John D Whyte, ?The Charter at 30: A Reflection? (2012) 17 Rev Const Stud 1 at 12. 114 Bredt & Dodek, supra note 84 at 187; Slattery, supra note 113 at 16. Advocates of a rights-specific application of the Oakes test point to the courts? approach of contextualizing each application of the test, and the volume of factors that may influence how the Oakes test is applied in a particular case, as evidence that a universal approach does not work: Bredt & Dodek, supra note 84 at 187; Bredt, supra note 87 at 66. They argue that, given the diversity in the form and character of the rights, a universal standard applicable to all Charter rights leads to ambiguity and inconsistency: Slattery, supra note 113 at 16; Constitutional Law Group, Canadian Constitutional Law, 4th ed (Toronto: Emond Montgomery Publications, 2010) at 786. 115 See Robert Alexy, A Theory of Constitutional Rights (Oxford??; New York: Oxford University Press, 2002); David M Beatty, The Ultimate Rule of Law (Oxford??; New York: Oxford University Press, 2004). 116 See, for example, David Rangaviz, ?Dangerous Deference: The Supreme Court of Canada in Canada v. Khadr? (2011) 46 Harv CR-CL L Rev 253; Roach, supra note 82; Catherine Dauvergne, ?How the Charter Has Failed Non-Citizens in Canada: Reviewing Thirty Years of Supreme Court of Canada Jurisprudence? (2012) 58 McGill LJ 663. 23 within some theories of rights, such as Alexy?s theory of principles117 and some communitarian or consequentialist approaches,118 but perhaps not so well within other theories.119 A key criticism is that a proportionality analysis fails to recognize the special, supreme status of the rights and freedoms included in the Charter.120 Those subscribing to a theory of rights that requires the prioritization of rights over the public interest raise concerns that a proportionality analysis allows rights to be ?balanced away?.121 The balancing approach inherent in proportionality review is criticized for reducing conflicts between rights, and between rights and the common good, to comparisons of relative weights, and therefore overlooking the moral status of a rights claim and the justification-blocking function of 117 See Alexy, supra note 115. Alexy suggests that rights are principles and principles are optimization requirements. 118 Consequentialists believe that the morally best action is always the action that maximizes the best consequences, as measured by some metric such as utility: Weinstock, supra note 86. 119 Barak, supra note 70 at 468. In particular, proportionality analysis has been criticized for being incompatible with liberal theories of rights, which are based on the notion that every individual should be free to pursue his or her own happiness (the ?good life?) without interference. 120 ?The Constitution of Canada is the supreme law of Canada?: Charter, supra note 1, s 52. 121 Some view rights as moral rules that should never be infringed, at least absent extreme and special circumstances: For example, Dworkin views rights as ?trumps? (R M Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977) at 184?205.), trumping the public interest unless their limitation is necessary to prevent a catastrophe or ?obtain a clear and major public benefit?: R M Dworkin, ?Rights as Trumps? in Jeremy Waldron, ed, Theories of Rights (Oxford??; New York: Oxford University Press, 1984) 153 at 191. Similarly, Habermas likens rights to ?fire walls? (J?rgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Studies in Contemporary German Social Thought (Cambridge, Mass: MIT Press, 1996) at 258?259.), and objects to rights being reduced to principles to be balanced: J?rgen Habermas, ?Reply to Symposium Participants, Benjamin N. Cardozo School of Law? in Michel Rosenfeld & Andrew Arato, eds, Habermas on Law and Democracy: Critical Exchanges (Berkeley: University of California Press, 1998) 381 at 430. See also Stavros Tsakyrakis, ?Proportionality: An Assault on Human Rights?? (2009) 7:3 Int?l J Const L 468 at 492; Gregoire C N Webber, ?Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship? (2010) 23 Can J L & Jurisprudence 179 at 198; Julian Rivers, ?Proportionality and Variable Intensity of Review? (2006) 65 Cambridge LJ 174 at 179; Barak, supra note 70 at 488. 24 rights.122 The proportionality analysis thus denies categorical answers to rights-claims because every answer to a claim is contingent on the optimization of the constitutional right.123 Proportionality analysis necessarily entails comparisons among various interests, values and rights. Arguably, these interests, values and rights cannot be measured by a common denominator or on a single scale of measurement, and may therefore be viewed as ?incommensurable? or ?incomparable?, and thus impossible to measure (or balance).124 Some view this incommensurability as a strong reason in favour of abandoning proportionality as a rational form of judicial decision-making.125 Responses to the incommensurability challenge include that rights and values can be commensurable and comparable in concrete situations,126 perhaps with reference to the ?marginal social importance? of fulfilling the objective compared with that of the importance of preventing the harm to the constitutional right.127 However critics respond that values cannot be demonstrated to be commensurable without using a moral argument, or at least an argument that justifies the degree of priority accorded to 122 Tsakyrakis, supra note 121 at 489. Habermas argues that if the justifying norms are viewed as principles, a ?court presents the general legal norms from which it derives a singular judgment as reasons that are supposed to justify its ruling on the case. If, however, the justifying norms are viewed as values that have been brought into an ad hoc transitive order for the given occasion, then the judgment is the result of a weighing of values. The court's judgment is then itself a value judgment that more or less adequately reflects a form of life articulating itself in the framework of a concrete order of values. But this judgment is no longer related to the alternatives of a right or wrong decision?: Habermas, supra note 121 at 430. 123 The constitutional right is seen as losing its status as a guarantee against unacceptable State action, as the proportionality analysis defends against unacceptable State action ?only insofar as it does not satisfy the principle of proportionality?, so that the guarantee is actually only against disproportional State action: Webber, supra note 121 at 199. Under this conception, judicial review just ?maintain[s] an efficiency-based oversight to ensure that there are no unnecessary costs to rights, that sledgehammers are not used to crack nuts, or rather, that sledgehammers are only used when nutcrackers prove impotent?: Rivers, supra note 121 at 180. 124 Tsakyrakis, supra note 121 at 471. The very metaphors of weight and balance denote the necessity of measuring and comparing: Virg?lio Afonso da Silva, ?Comparing the Incommensurable: Constitutional Principles, Balancing and Rational Decision? (2011) 31:2 Oxford J Legal Stud 273 at 276. 125 Webber argues that proportionality analysis fails because, without an identified common measure, the principle of proportionality cannot direct reason to an answer; it can merely assist in choosing between incommensurables. While there may be good reasons for two or more options, proportionality cannot provide good reasons for choosing between them, so that ?any one alternative can be supported by good reason even if the choice between alternatives is not determined by reason?: Webber, supra note 121 at 197. See also Habermas, supra note 121 at 430; da Silva, supra note 124 at 278. 126 da Silva, supra note 124 at 286. da Silva also suggests that ?stalemates? can be resolved through judicial deference: Ibid at 292. See also Paul-Erik N Veel, ?Incommensurability, Proportionality, and Rational Legal Decision-Making? (2010) 4:2 Law & Ethics of Human Rights 178. 127 Barak, supra note 70 at 484. 25 the values in issue.128 Thus critics argue that proportionality does not provide any rational basis for deciding one way rather than the other, so that the decision will ultimately depend on the fully subjective choice of judges.129 Others argue that balancing is unavoidable because there is no other rational way in which the reason for the limitation can be put in relation to the constitutional right.130 There is also nothing about the proportionality framework that prevents recognition of the constitutional status of rights within that analysis.131 Although the Court has not attempted to articulate a comprehensive moral and political theory thought to underlie the Canadian constitutional order,132 the implementation of the proportionality analysis allows for an approach that recognizes that there is a core to each right that cannot be violated. Although some believe that a proportionality framework results in judges making objective decisions,133 proportionality cannot guarantee complete objectivity, given that each of the steps in the proportionality framework entails an element of judicial discretion that can only be exercised with an element of judicial subjectivity.134 Judges may be sincere in their efforts to be neutral and impartial, but moral and political value judgements lie at the heart of any inquiry into the justifiability of a government?s implementation of a rights-limiting measure.135 Given the often vague and ambiguous language in the Charter, judges have the 128 Tsakyrakis, supra note 121 at 474. 129 See da Silva, supra note 124 at 278. 130 Robert Alexy, ?On Balancing and Subsumption. A Structural Comparison? (2003) 16:4 Ratio Juris 433 at 436. 131 Barak, supra note 70 at 490. 132 Miller, supra note 104 at 107. Alan Brudner suggests that Oakes test makes sense under the theory of rights proposed by Hegel: Alan Brudner, ?What Theory of Rights Best Explains the Oakes Test?? in The Limitation of Charter Rights: Critical Essays on R v Oakes (Montreal: ?ditions Th?mis, 2009) 59 at 61. The Court has referred to the basic theory of the Charter as being to avoid subordinating individual choices to ?any one conception of the good life?: R v Morgentaler,  1 SCR 30 at 166, Wilson J, and that ?the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass?: Ibid at 164, Wilson J. 133 Beatty, supra note 115 at 166. 134 Barak, supra note 70 at 478. Although Barak insists that the decisions reached by judges are still rational: Ibid at 485-486. 135 R v Keegstra,  3 SCR 697 at 845, McLachlin J (as she then was). 26 ability to exercise a large degree of discretion and choice in the interpretive process.136 The Court?s treatment of the Oakes test proportionality analysis is clearly value-laden.137 The rational connection and minimal impairment tests can both be presented as ?value-neutral?, as a technical assessment of legislative means,138 and a judgement about the effectiveness (rather than the value) of the restriction.139 However, in reality these tests are not divorced from value judgements.140 In determining the underlying values of a free and democratic society, the judge will inevitably be influenced by his or her moral and political philosophy.141 Any attempt to evade the political and moral questions inherent in the process of rights reasoning is futile, as balancing is inevitably a normative undertaking.142 Some critics of the proportionality framework go so far as to say that, even when a judge purports to be conducting a genuine proportionality analysis, in reality he or she is only justifying his or her decision using the language of the proportionality doctrine.143 In this way, the proportionality framework may be seen as masking the underlying subjective judgements made in the 136 Hogg, supra note 2 at 36.4(b); Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997) at 16. 137 Dieter Grimm, ?Proportionality in Canadian and German Constitutional Jurisprudence? (2007) 57:2 UTLJ 383 at 395; Moon, supra note 97 at 346. As La Forest J (dissenting) stated in RJR MacDonald, the s. 1 inquiry ?is an unavoidably normative inquiry, requiring the courts to take into account both the nature of the infringed right and the specific values and principles upon which the state seeks to justify the infringement?: RJR-MacDonald, supra note 77 at para 62. 138 Constitutional Law Group, supra note 114 at 778. 139 Ibid at 780. 140 When a judge interprets legislation alleged to be a justified limitation ?in a free and democratic society?, he or she must inevitably delineate some of the attributes of a democratic society: Vriend v Alberta,  1 SCR 493 at para 141. See also Bakan, supra note 136 at 29; Moon, supra note 97 at 362; Constitutional Law Group, supra note 114 at 778. 141 A judge?s background, and her or his social and institutional location, inevitably shapes the judge?s decision-making: Bakan, supra note 136 at 31. See also David L Schwartz & Lee Petherbridge, ?The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study? (2011) 96 Cornell L Rev 1345 at 1368; Richard Delgado, ?Storytelling for Oppositionists and Others: A Plea for Narrative? (1988) 87 Mich L Rev 2411 at 2441. Even within a proportionality framework, ?identifying the interests that are to count and determining their weight cannot proceed apolitically and amorally?: Webber, supra note 121 at 193. 142 Webber, supra note 121 at 191?193. Moon suggests that the influence of different normative views is starkly shown in cases involving conflicts between religious practice and state law, where judges must decide whether religious individuals or groups should be exempted from public norms and permitted to live in accordance with their normative views: Richard Moon, ?Freedom of Religion under the Charter of Rights: The Limits of State Neutrality? (2012) 45 UBC L Rev 497 at 539. 143 Terence G Ison, ?The Operational Realities of the Charter*? (2012) 25:1 Canadian Journal of Administrative Law & Practice 1 at 15. Bredt suggests that a proportionality analysis such as the Oakes test is not applied to reach a principled judgment but rather is manipulated to reach the desired result: Bredt, supra note 87 at 63. 27 decision-making process yet putting up a fa?ade of rationality, objectivity, and neutrality.144 This leads some scholars to suggest that the judiciary should abandon the illusion of objectivity,145 and focus instead on ?the real moral issues? underlying rights cases.146 22.214.171.124 Assessment of proportionality as a framework for review The principal benefits of a proportionality framework for reviewing rights-infringements are the potential to increase transparency in judicial decision-making and facilitate a constitutional dialogue that enhances respect for constitutional rights. While no analytical process can guarantee objective decision-making (or make all subjective decision-making transparent), a doctrinal test can present a challenge to a judge?s ideological views and reduce the likelihood of arbitrary decisions. Proportionality is a test of when, and to what extent, the state may encroach on a protected right, and is designed to ensure that rights are accorded appropriate weight in the balancing exercise. A proportionality test accords the constitutional right priority and requires that any infringement of that right be justified in a rational and transparent manner. The proportionality framework set out in the Oakes test is therefore helpful in resolving the issue of whether a rights-limiting measure is reasonable and demonstrably justified in a free and democratic society (as required by s. 1 of the Charter). The stringent standard required by s. 1 is weakened, however, when the courts incorporate justificatory criteria into the definition of the Charter guarantees, and do not undertake the analytical process set out in the Oakes test. The key criticisms of the two-stage approach and of a universal test for determining reasonable limits are really about the need to reflect on the scope of the right in issue when ascertaining whether a limit is reasonable. This is a valid concern but does not necessarily require either a one-stage or rights-specific 144 Tsakyrakis, supra note 121 at 474. See also Ison, supra note 143 at 16. 145 Bakan argues that, while the s. 1 analysis may appear ?legal rather than political?, the appearance of legalistic constraint is ?an illusion?: Bakan, supra note 136 at 27. 146 Tsakyrakis, supra note 121 at 493; Webber, supra note 121 at 201. 28 approach: the Oakes test is flexible enough to allow the Court to reflect on the scope of the right when considering the rights-limiting measure (particularly in the ?minimal impairment? and ?proportionate effect? steps). Likewise, many of the criticisms raised regarding proportionality frameworks in general are inherent to judicial review of constitutional rights, so would not be remedied through an alternative approach (assuming the alternative approaches entail some balancing of interests). When considering whether a measure is a justified limitation on a Charter guarantee, the Court must respect society?s choice to constitutionalize that right or freedom, so that the special status of the right is not disregarded when weighing that right or freedom against another, or against the public interest. This weighing or balancing exercise is at the heart of the proportionality approach, and judges must balance the deleterious and the salutary effects of the rights-limiting measure for the individuals involved, and for the community or society in general. In doing so, judges necessarily weigh incommensurable rights and interests, and make subjective judgements about the value of those rights and interests. Subjectivity in applying a proportionality analysis can be tempered, however, by respecting the initial decision-maker?s rationale for limiting the constitutional right or freedom, and intervening only where this reasoning is flawed. Greater recognition of the inherent subjectivity involved in applying a proportionality analysis (and in judicial review of constitutional rights in general) would also further enhance both transparent decision-making and society?s dialogue about the appropriate balance between rights and freedoms and the broader interests of society. The Oakes test, the distinction between an ?ordinary? administrative law review and Charter analysis, and the nature of proportionality analysis are explored more fully in Section 3.4. Now that the framework and key terms of the debate have been outlined, however, we 29 can turn to Chapter 2?s analysis of the changing conceptions of the relationship between the two bodies of public law. 30 2 CHANGING CONCEPTIONS OF THE RELATIONSHIP BETWEEN ADMINISTRATIVE LAW AND THE CHARTER In Dor?, the Court justified revising its approach to judicial review on the basis that there is now a revised relationship between the Charter, the courts, and administrative law than that which existed when the Charter was first enacted.147 Prior to Dor?, the courts had explored different ways of reviewing the constitutionality of administrative decisions, ?vacillating between the values-based approach in Baker and the more formalistic template in Slaight?.148 This chapter explores the jurisprudence in which this debate has played out, to discern how the Court has conceptualized the relationship between administrative law and the Charter over time. Drawing on key Supreme Court cases dealing with both administrative law and the Charter, I analyze how the Court has articulated this relationship and the inherent tensions in the relationship. While my focus is on judicial review of administrative decisions alleged to violate the Charter, I will also look to cases dealing with administrative agencies? jurisdiction over the Charter for evidence of the Court?s views. These ?jurisdiction? cases relate to administrative bodies? jurisdiction to decide the constitutionality of statutory provisions under s. 52(1) of the Constitution Act, 1982,149 and whether administrative bodies are ?court[s] of competent jurisdiction? that can grant s. 24 Charter remedies.150 These cases allow a deeper understanding of the administrative law/Charter relationship, and the reasons for the Court?s 147 Dor?, supra note 11 at para 30. 148 Ibid at para 31. Citing Baker, supra note 9; Slaight, supra note 7. Both of these cases are explored in the following sections. 149 Constitution Act, 1982, supra note 27, s 52(1). Section 52(1) provides: ?The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.? 150 Charter, supra note 1, s 24. See further below, Section 2.3.1. 31 apparent move toward greater recognition of the legitimacy of administrative decision-making in recent cases.151 After setting out the tensions inherent in the relationship between administrative law and the Charter, I consider the Court?s initial conceptions of the relationship as revealed in early cases. I then explore the Court?s subsequent diverging approaches and the struggle to conceptualize the interrelationship between administrative law and the Charter. In the final section, I analyze recent cases in which the Court has attempted achieve a more coherent and unified approach to cases involving the Charter and administrative law. 2.1 Relationship between administrative law and the Charter 2.1.1 The unity of public law thesis As noted above, the traditionalist or positivist conception of administrative law is that the role of the courts is to ensure that administrative decision-makers are acting in compliance with legislation. This conception regards a legislative body as the only legitimate source of fundamental legal values, and therefore other branches of government should apply those values only when such values are articulated in a legislative enactment.152 This encompasses a formal conception of the separation of powers between the branches of government whereby the legislative has a monopoly on making law and the judiciary has a monopoly on interpretation of the law. The executive is viewed as exercising ?purely instrumental functions? whose role is to give effect to legislative statements.153 On this view, public law as compartmentalized in traditional ways, into constitutional and administrative law (and international law). 151 Fox-Decent & Pless, supra note 6. 152 David Dyzenhaus, ?Baker: The Unity of Public Law?? in David Dyzenhaus, ed, The Unity of Public Law (Portland, Oregon: Hart Publishing, 2004) 1 at 3. 153 Cartier, Genevi?ve, supra note 25 at 81. 32 In contrast, the unity of public law theory posits that the same fundamental values underpin the whole of public law and that all branches of government, as well as individuals, have a legitimate role in the articulation of those values.154 This conception considers administrative law a part of constitutional law, with the only difference being that the values in administrative law are unwritten.155 Constitutional law, in the sense of written law, is merely an explicit articulation of that set of values (rather than their source), and so fundamental values (as unwritten constitutional values) have an impact even when the written texts of the constitution do not cover an exercise of public power. The shared fundamental values of administrative law and the Charter thus ?form the heart of public law conceived as a unity?.156 The unity of public law thesis therefore supports a substantive value-laden role for administrative law.157 Further, actors other than legislatures and constituent assemblies are seen as having a legitimate role in articulating the fundamental values of the society,158 so the executive is viewed as having a role to play in the articulation of the values underlying the grant of discretion.159 2.1.2 Key tensions in the relationship The relationship between the common law of administrative law and the constitutional law of the Charter gives rise to some significant tensions. As a result of the expansion of the administrative state, and well before the enactment of the Charter, administrative law struggled to construct a coherent relationship between courts and the other branches of 154 See David Dyzenhaus, The Unity of Public Law (Portland, Oregon: Hart Publishing, 2004); Cartier, Genevi?ve, supra note 25 at 78?85. 155 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. 156 Cartier, Genevi?ve, supra note 25 at 86. 157 Gratton & Sossin, supra note 5 at 157. 158 Dyzenhaus, supra note 155 at 4?5. 159 Cartier, Genevi?ve, supra note 25 at 81. 33 government, and with the modern administrative state.160 The introduction of administrative bodies (which include boards, tribunals, commissions, officials and ministers, hospitals, school boards, Aboriginal bands, municipalities, and police officials), which were granted substantial powers to make decisions on matters relating to individual rights, raised concerns about accountability,161 and was seen by some as a threat to both parliamentary sovereignty and to the rule of law.162 The powers conferred on these bodies are often conferred in discretionary terms, and are protected by statutory privative clauses that assert that the administrative body?s decision is to be final and unreviewable by any court.163 Furthermore, these bodies are often not independent, as the executive can control the membership of the bodies, control members? salaries, and exert significant influence over the delegated policy areas.164 The courts responded to these issues by developing methods of judicial review grounded in common law presumptions that the legislature always intends that statutorily delegated decision-makers act reasonably and fairly.165 160 Mary Ann Catherine Liston, Honest Counsel: Institutional Dialogue and the Canadian Rule of Law (PhD Thesis, University of Toronto (Canada), 2007) [unpublished] at 245. 161 Ibid at 244. See also Gus Van Harten, David J Mullan & Gerald P L R Heckman, Administrative Law: Cases, Text, and Materials, 6th ed (Toronto: Emond Montgomery, 2010) at 951?952. 162 On the other hand, those who supported the development of the administrative state were concerned that judicial review of administrative decisions would hinder the flexible regulation necessary to implement statutory schemes in the public interest: see Liston, supra note 160 at 243. Discretion allows the administrative state the flexibility needed to make individual decisions adapted to particular situations and to adopt rules to structure the way in which a legislative scheme is implemented: Genevieve Cartier, ?Administrative Discretion: Between Exercising Power and Conducting Dialogue? in Administrative Law in Context, 2d ed (Toronto: Emond Montgomery Publications, 2013) 381 at 403. 163 Liston, supra note 160 at 243. Furthermore, robust oversight by Parliament and the courts is impossible due to their lack of specialized policy knowledge and the quantity of cases that the administrative state generates: Ibid. 164 See, for example, Saskatchewan Federation of Labour v Saskatchewan (Attorney General), 2013 SKCA 61 (CanLII). 165 Liston, supra note 160 at 243. The inherent power of superior courts to review administrative action stems from Constitution Act, 1867, supra note 28, ss 96?101. The Court has interpreted ss. 96-101 to mean that an administrative body cannot perform the function of a superior court, so the executive branch cannot displace the judicial branch through the creation of these bodies. Judicial review of administrative decision-makers is thus constitutionalized in that the Court has applied s. 96 of the Constitution Act 1867 to strike down legislation which sought to grant the power to make final decisions on questions of jurisdiction to an administrative body: Crevier, supra note 34 at 234?238. 34 The introduction of the Charter challenged the delicate balance the courts maintained within administrative law,166 giving rise to tensions and challenges in conceptualizing the relationship between administrative law and the Charter. The concerns about accountability, separation of powers and the appropriate institutional role of administrative bodies remain,167 and these concerns are highlighted in the Court?s jurisprudence considering how these bodies should interpret and apply the fundamental rights and freedoms guaranteed by the Charter. The discretion exercised by administrative bodies also gives rise to rule of law concerns about the potential for arbitrariness,168 and lack of accessibility, predictability and precision.169 These concerns are especially troubling in relation to discretionary decisions that infringe on human rights given their importance to individuals. The Court has thus struggled to balance this tension between the exercise of discretion and the rule of law, particularly in regards to the compatibility between discretionary decisions and the requirement in s. 1 of the Charter that any limits on Charter guarantees are ?prescribed by law?.170 A further site of particular tension in the relationship between administrative law and the Charter is the extent to which administrative law and the Charter can be ?merged? or brought within a coherent legal framework. The courts struggle with how to respect the supremacy and fundamental nature of Charter guarantees while also adhering to administrative law principles. In particular, review under the ?Charter approach? raises concerns about the 166 As Professor Mary Liston put it, the enactment of the Charter?s set of guaranteed rights ?enabled citizens to disrupt this judicial fancy footwork? of ensuring administrative accountability without disrupting institutional relationships, as ?the possibility emerged of preventing administrative bodies from exercising their previously robust regulatory and decisionmaking capacity?: Liston, supra note 160 at 246. 167 See, for example, Liston, supra note 23; Dyzenhaus, supra note 46. 168 For example, Dicey?s view that ?wherever there is discretion there is room for arbitrariness, and ? must mean insecurity for legal freedom on the part of its subjects?: Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (London: MacMillan, 1959) at 188. Courts have thus recognized constraints on the exercise of discretion even if no express standards are prescribed: Roncarelli v Duplessis,  SCR 121 at 140, Rand J. See also Baker, supra note 9 at para 53. 169 See Van Harten, Mullan & Heckman, supra note 161 at 951?953. See also Vancouver Transit, supra note 7 at para 50. 170 Section 1 of the Charter states that the Charter ?guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society?: Charter, supra note 1, s 1 [emphasis added]. 35 ?constitutionalization of administrative law?, a critique stemming from the potential for individualist Charter values to prevail over the democratically underwritten public purposes underlying the administrative state.171 These three aspects of the relationship between administrative law and the Charter, as particular sites of tension, appear to have especially influenced the Court?s conception of the relationship. In my analysis of the Court?s jurisprudence on the relationship between administrative law and the Charter, I therefore explore each of these tensions further: the appropriate institutional roles of the branches of government, discretionary decision-making and the rule of law, and the coherence of the approach to integrating Charter and administrative law principles and purposes. 2.2 Initial conceptions of the relationship: Slaight In the 1989 case of Slaight Communications Inc. v Davidson [Slaight],172 the Court first addressed the application of the Charter to a discretionary administrative decision.173 At issue in Slaight was a provision of the Canada Labour Code conferring broad discretion on labour arbitrators to impose equitable remedies for unfair dismissal. A labour arbitrator, exercising his discretion under that provision, had ordered an employer to give an unfairly dismissed employee a letter of reference containing specified text and to say nothing further about the employee. The employer alleged that this order violated its freedom of expression as guaranteed by the Charter.174 171 Wildeman, supra note 23 at 378. The concern is that a Charter-focused approach prioritises individual rights over other important public interest and public law values that play a role in constraining the exercise of administrative discretion and encouraging high-quality decision-making, such as fairness, consistency, legitimate expectations and principles of sound administration: see Murray Hunt, ?Against Bifurcation? in David Dyzenhaus, Murray Hunt & Grant Huscroft, eds, A Simple Common Lawyer: Essays in Honour of Michael Taggart (Oxford: Hart Publishing, 2009) 99 at 106?107. 172 Slaight, supra note 7. 173 Fox-Decent & Pless, supra note 6 at 424. 174 Charter, supra note 1, s 2(b). 36 Lamer J (as he then was) set out an analytical framework for review of administrative decisions under the Charter (which Dickson CJC for the majority adopted), as follows:175 1. [If the] disputed order was made pursuant to legislation which confers, either expressly or by necessary implication, the power to infringe a protected right [it is] necessary to subject the legislation to the test set out in s. 1 by ascertaining whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society. 2. [If the] legislation pursuant to which the administrative tribunal made the disputed order confers an imprecise discretion and does not confer, either expressly or by necessary implication, the power to limit the rights guaranteed by the Charter, [it is] necessary to subject the order made to the test set out in s. 1 by ascertaining whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society; ? if it is not thus justified, the administrative tribunal has necessarily exceeded its jurisdiction; ? if it is thus justified, on the other hand, then the administrative tribunal has acted within its jurisdiction. In summary, if the decision or order was made pursuant to legislation that conferred (expressly or impliedly) the power to infringe a protected right, the reviewing court should subject the legislation to the Oakes test.176 However, if the empowering legislation conferred an imprecise discretion that does not confer the power to limit a protected right, the decision is the source of the limitation so the reviewing court should subject the decision to the Oakes test. Thus, with Slaight, the Court established that any exercise of statutory discretion must comply with the Charter and that an administrative body exercising delegated powers does not have the power to make an order that would result in an unjustifiable infringement of the Charter. Slaight, and subsequent cases applying the Slaight framework, highlight many of the aspects of the Court?s conception of the relationship between administrative law and the Charter that play out in later cases. 175 Slaight, supra note 7 at 1079?1080 [emphasis in original]. 176 In order to justify an infringement, the state must satisfy the proportionality test set out by the Court in Oakes (see above, Section 1.3). 37 2.2.1 Relationship between administrative law and the Charter in early cases 126.96.36.199 Institutional roles The basic principles that Lamer J (as he then was) relied on in developing the Slaight framework was that an administrative decision-maker derives all its powers from statute (is ?a statutory creature?),177 and may not exceed this legislative authority.178 Since legislatures may not enact laws that infringe the Charter, neither can they authorize or empower another person or entity to do so. The legislation is presumed to comply with the Charter, so the decision-maker may not violate the Charter when acting under authority granted by that legislation.179 The framework thus relies on a conception of administrative decision-makers as mere creatures of statutes, empowered and bound by legislation. In Eaton v Brant County Board of Education [Eaton],180 Lamer CJC (in a concurring judgment) clarified his Slaight framework, stating that any open-ended or vague language in the enabling statute should also be interpreted so as to not authorize breaches of the Charter.181 In Eldridge v British Columbia (Attorney General),182 the Court also applied the Slaight framework but recognized at the remedy stage the administrative body?s role and discretion in how to achieve Charter compliance.183 188.8.131.52 Discretion and the rule of law Cases prior to Slaight had insisted that precise standards for the exercise of discretion 177 Slaight, supra note 7 at 1081. 178 Ibid at 1080. 179 Ibid at 1080?1081. An adjudicator exercising delegated powers does not have the power to make an order that would result in an infringement of the Charter, and he exceeds his jurisdiction if he does so. 180 Eaton, supra note 7. 181 Ibid at para 3. This presumption of constitutionality is informed by ideas about the proper role of the courts in reviewing legislation under the Charter: see Ibid at para 48. 182 Eldridge, supra note 7. That case arose out of the provincial government?s delegation to the Medical Services Commission of the power to define what constitutes a ?medically required? service for the purpose of the provincial health insurance program. The Court conducted a s. 1 Oakes analysis of the Commission?s decision not to fund sign language interpretation, and concluded that this decision violated the right to equality guaranteed by s. 15(1) of the Charter. 183 The Court held that the ?appropriate and just remedy? in that case was to grant a suspended declaration that the failure to fund sign language interpretation as part of medical services was unconstitutional, given that it is not ?this Court?s role to dictate how this is to be accomplished?: Ibid at paras 95?96. 38 impacting on Charter rights be contained in statutory or regulatory form, reflecting concerns about the foreseeability of a limit on rights,184 a ?chilling? effect on the exercise of rights,185 and a lack of constraints on administrative action.186 The Slaight approach, however, does not insist that Charter rights can only be limited by precise general rules. The Court held that, in spite of the broad grant of discretion granted to the arbitrator by the enabling legislation, the s. 1 ?prescribed by law? condition was met where the adjudicator?s order fell within the authority conferred on him by statute.187 The Slaight framework also requires that the court choose whether its analysis should be directed at a law or at an administrative decision made pursuant to the law.188 The analytical or methodological approach taken on judicial review differs depending on whether the statute (expressly or by necessary implication) confers a power to infringe the Charter, or whether the decision is made under a statute that does not confer a power to limit Charter rights.189 The Slaight framework therefore results in most cases passing the prescribed by law threshold,190 so this approach to the prescribed by law requirement arguably does not place any rule of law-type restrictions on the exercise of discretion.191 184 See June M Ross, ?Applying the Charter to Discretionary Authority? (1991) 29 Alta L Rev 382 at 408?410. 185 See Ibid at 411?413. 186 See Ibid at 402?408. 187 See also Osborne v Canada (Treasury Board),  2 SCR 69 at 95. 188 As Ross puts it: ?If the law does not mandate the action, that is the end of the matter. If the law does mandate the action, and the law is reasonable, then the action is reasonable?: Ross, supra note 184 at 407. 189 See also Irwin Toy Ltd. v Quebec (Attorney General),  1 SCR 927 at 983. Ross suggests that the Court?s lack of concern about precise standards in Irwin Toy may be attributed to the fact that judicial discretion was involved, and there may be less concern about the control of judicial discretion ?as judges are obviously trained and independent decision-makers ? guidelines to the proper exercise of the discretion will be established in published case law, so that foreseeability is less of a problem than in the administrative context?: Ross, supra note 184 at 409. 190 Gratton, supra note 41 at 494. 191 Statutory authority can almost always be found for the actions of an administrative actor: see, e.g. Committee for the Commonwealth of Canada v Canada,  1 SCR 139 at 244, McLachlin J. The Slaight framework therefore leaves open the possibility that limitations on rights resulting from discretionary decisions may be unforeseeable due to the broad or undefined scope of the discretion, as it does not allow for any inquiry into whether the statutory authority is properly framed. 39 184.108.40.206 Coherence of approach In Slaight, Dickson CJC noted that the ?precise relationship between the traditional standard of administrative law review of patent unreasonableness and the new constitutional standard of review will be worked out in future cases?,192 but suggested that the courts should rely on Charter review rather than administrative law in cases raising Charter issues.193 In his view, because the patent unreasonableness standard of review ?rests to a large extent on unarticulated and undeveloped values and lacks the same degree of structure and sophistication of analysis? as analysis under s. 1 of the Charter, ?in the realm of value inquiry? the courts should rely on s. 1 of the Charter.194 The Court was clearly of the view that Charter review focuses the analysis and provides a structure developed for the purpose of protecting rights. In Ross v New Brunswick School District No. 15 [Ross],195 the Court applied the Slaight framework and interpreted it as indicating that there is ?no need for an administrative law review of values that had been dealt with pursuant to a Charter examination under s. 1?.196 The Court therefore examined some aspects of the tribunal?s decision (those ?untouched by the Charter?)197 on an administrative law review, and then undertook a review of the 192 Slaight, supra note 7 at 1049. This preference for developing the relationship between the Charter and administrative law in an incremental way was also shown in Reference re ss. 193 and 195.1 of the Criminal Code (Man.) [Prostitution Reference],  1 SCR 1123 at 1176?1177. 193 Slaight, supra note 7 at 1049. Dickson CJC therefore applied only the above framework when reviewing the adjudicator?s decision, and concluded that the arbitrator?s order was not in breach of the Charter: Ibid at 1057. Lamer J, on the other hand, first undertook an administrative law review of the arbitrator?s orders, and then conducted a Charter review of the orders using the above framework and applying the Oakes test. He concluded that part of the order was a patently unreasonable decision (because the arbitrator had no statutory authority to make an order that the employer say nothing more than was in the letter) but the order that the letter contain specified content was not unreasonable (in an administrative law sense) and was reasonable and justified under Charter analysis. 194 Slaight, supra note 7 at 1049. 195 Ross, supra note 7. In that case, the Court upheld a decision by a Human Rights Commission Board of Inquiry that ruled a Board of School Trustees acted in a discriminatory manner by failing to take appropriate action against a teacher who make repeated public attacks on Jewish people. 196 Ibid at para 32. LaForest J asserted that it was ?obvious? that a review on an administrative law standard ?should not impose a more onerous standard upon government than under the Charter review?: Ibid. 197 Ross, supra note 7 at para 33. 40 tribunal?s discretionary order to determine compliance with the Charter guarantee of freedom of expression by conducting an Oakes test analysis.198 Similarly, in Eaton, the Court concluded that, given the finding that the reasoning and decision of the Tribunal did not discriminate contrary to s. 15 of the Charter, it was ?unnecessary and undesirable? to consider the constitutional validity of the enabling legislation or regulations.199 The Slaight framework, as interpreted in Ross and Eaton, therefore suggests that administrative review and constitutional review exist in ?watertight compartments? and that either review can be conducted without any attention to the other.200 The Court considered that the analysis of the Charter values involved could only be adequately analyzed under the constitutional standard of s. 1, suggesting a ?hierarchical view? of the relationship between the Charter and administrative law that rejects the ability of administrative law to deal adequately with issues of fundamental values.201 Protection of rights was ensured through the application of the same justificatory standard whether a Charter infringement was located in the ?law? or in an individualized decision. In both cases, judicial review proceeded on the court?s view of the ?correct? interpretation of the Charter. In a ?trilogy? of cases in 1990 and 1991, Douglas College,202 Cuddy Chicks,203 and Tetreault-Gadoury204 (the Cuddy Chicks trilogy), the Court made clear that administrative 198 Ibid at paras 96?108. The Court concluded that one aspect of the order was not a justifiable infringement of the Charter ?and is therefore in excess of the Board?s jurisdiction?: Ibid at paras 105?107. The Court held that the appropriate remedy in this case was severance as ?any part of the order that is inconsistent with the Charter is beyond the jurisdiction of the Board and cannot stand?: Ibid at para 110. 199 Eaton, supra note 7 at para 80. 200 Paul Daly, ?Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms,? (2013), online: <http://ssrn.com/abstract=2357453> at 22. 201 Cartier, Genevi?ve, supra note 25 at 68. 202 Douglas/Kwantlen Faculty Association v Douglas College,  3 SCR 570. In Douglas College, a labour arbitrator was called upon to determine whether a mandatory retirement provision in a collective agreement violated s. 15(1) of the Charter. The Court held that s. 52(1) does not, in itself, confer the power to an administrative tribunal to find a legislative provision to be inconsistent with the Charter. Therefore whether a tribunal has this power will depend on the mandate given to the particular tribunal by the legislature. Thus, as the arbitrator was empowered to interpret and apply any Act intended to regulate employment, and ?Act? must include the Charter, the arbitrator had authority to apply the Charter: Ibid at 596. 203 Cuddy Chicks Ltd. v Ontario (Labour Relations Board),  2 SCR 5. The issue was the Ontario Labour 41 bodies that are empowered to decide questions of law have the authority (and duty) to decide the constitutionality of provisions in their own statutory schemes. The Court held that the supremacy of the Constitution, as expressed in s. 52(1) of the Constitution Act, 1982, means that administrative bodies have a duty to subject their enabling statute to Charter scrutiny and treat any offending provisions as having no force or effect because of constitutional invalidity.205 ? ? In the Cuddy Chicks trilogy, the Court shed more light on how it viewed the role of administrative decision-makers in relation to the Charter. The Court emphasized that one of the advantages of recognizing this power is that it promotes respect for the Constitution because constitutional issues may be raised ?at an early stage in the context in which it arises without the citizen having first to resort to another body, a court which will often be more expensive and time-consuming?.206 The Court also suggested that this approach reinforces the importance of governmental decisions focusing on the values enshrined in the Charter.207 However, despite recognizing administrative bodies? expertise, the Court was clear in the Cuddy Chicks trilogy that constitutional decisions by administrative bodies would receive no Relations Board?s jurisdiction to determine, in the course of proceedings before the Board, the constitutionality of a provision of its enabling statute. The Court held that the Board?s enabling statute granted the Board authority to decide questions of law, and the Board had jurisdiction over the parties, subject matter and remedy requested (certification). Wilson J (with L'Heureux-Dub? J) again added the qualification that the absence of legislative authority to deal with the Charter issue in the governing statute should not necessarily be determinative of a tribunal's jurisdiction, since the authority and obligation to apply the law may be grounded elsewhere: Ibid at 20. 204 T?treault-Gadoury v Canada (Employment and Immigration Commission),  2 SCR 22. In this case, the Court decided that the absence of a statutory provision granting a power to decide questions of law to a Board of Referees meant that the Board did not have jurisdiction to consider the constitutional validity of a section of its enabling statute. The Court also looked at the administrative scheme the Board was a part of, in particular that the respondent had the ability to appeal to an umpire who was empowered to consider constitutional questions (under the legislative scheme, umpires would be authorized to resolve constitutional issues): Ibid at 36?37. L?Heureux Dub? J once again suggested that, where the statute is silent or unclear there are many ?other factors? to be considered when determining whether the constitutional subject matter should be considered by an administrative tribunal (at 49). 205 Douglas College, supra note 202 at 594; Cuddy Chicks, supra note 203 at 19. 206 Douglas College, supra note 202 at 604. 207 Ibid at 605. 42 curial deference.208 Courts could therefore ?correct? the body?s constitutional interpretation on judicial review. 2.3 The struggle for coherence: diverging approaches emerge Initial cases dealing with Charter and administrative law issues took a cautious approach but nonetheless set out some clear guidance on the impact of the enactment of the Charter on administrative law principles. However, despite general unanimity in the Court?s initial cases dealing with Charter and administrative law issues, from the mid-1990s members of the Court diverged on the appropriate approach to both the application of the Charter to discretionary administrative decisions and administrative bodies? jurisdiction over the Charter. In cases involving administrative decisions impacting on Charter values, the Court diverged on whether such decisions should be reviewed through the application of Charter review, or according to traditional administrative law/judicial review grounds (and, in those cases, whether to apply a correctness or reasonableness standard of review). In addition, cases in the mid-1990s on administrative bodies? jurisdiction highlighted the diversity of views among members of the Court about the appropriate institutional role of such bodies. 2.3.1 Debate over administrative agencies? jurisdiction The 1995 case of Weber v Ontario Hydro was the first Supreme Court case to consider the jurisdiction of administrative bodies under s. 24(1) of the Charter, which provides that a person claiming his or her Charter rights or freedoms have been infringed ?may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and 208 Ibid; Cuddy Chicks, supra note 203 at 17. Furthermore, the administrative agency?s ruling on the constitutionality of a statutory provision would be limited to the case before it because a declaration of invalidity is a remedy only exercisable by the superior courts: see Ibid at 17. The Court explained that while s. 52(1) does not, in itself, confer on an administrative tribunal the power to find a legislative provision inconsistent with the Charter, a power to interpret law must include the power to determine whether that law is constitutionally valid. Administrative bodies may therefore decline to apply unconstitutional provisions because they are ?of no force or effect? under s. 52 of the Constitution Act. Because an administrative actor?s power derives only from its enabling statute, its determination of constitutionality is limited to the particular case before it rather than the statutory provision in general: see Ibid. 43 just?.209 The majority applied the test the Court had previously applied to courts,210 explaining:211 The power and duty of [labour] arbitrators to apply the law extends to the Charter, an essential part of the law of Canada: ? In applying the law of the land to the disputes before them, be it the common law, statute law or the Charter, arbitrators may grant such remedies as the Legislature or Parliament has empowered them to grant in the circumstances. ? The majority concluded that the arbitrator in that case had jurisdiction over the parties, the subject matter, and the power to award the remedies claimed (damages and a declaration). However, in dissent, Iacobucci J (with LaForest and Sopinka JJ) expressed the view that the arbitrator was neither a ?court? nor of ?competent jurisdiction? for the purpose of granting Charter remedies under s. 24(1).212 They asserted that fundamental differences between courts and tribunals mean that administrative bodies are not suitable bodies to adjudicate Charter claims. These differences include that tribunals are not bound by stare decisis (which is particularly important in the area of Charter adjudication),213 tribunals often have ?simplified or altered? procedures that may not include a hearing, tribunal members are not trained in determining appropriate remedies for a constitutional violation and often have no formal legal training, and tribunals do not ?have the same guarantee of independence as a court?.214 In 209 Charter, supra note 1, s 24. Section 24(1) provides: ?Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.? 210 See Mills v The Queen,  1 SCR 863. In that case, the Court noted that the Charter did not create jurisdiction for a court, so jurisdiction had to exist independently of the Charter: Ibid at 261. The Court held that the test for jurisdiction to grant s. 24(1) remedies was that the court must possess jurisdiction over the person, over the subject matter, and to grant the remedy (the ?Mills test?): Ibid at 271. In Weber, the Court stated that it follows from Mills that statutory tribunals may be courts of competent jurisdiction to grant Charter remedies, provided they have jurisdiction over the parties and the subject matter of the dispute and are empowered to make the orders sought?: Weber v Ontario Hydro,  2 SCR 929 at para 66, McLachlin J (as she then was). 211 Weber, supra note 210 at para 61. 212 In their view, the use of the word ?court? was deliberate, and was meant to correspond to an adjudicating body with specific characteristics that enable it to grant Charter remedies: Ibid at para 10. 213 ?As the Charter forms part of the supreme law of the country, it is in keeping with its status to have Charter claims decided by a system of adjudication that tries to be relatively uniform (both in the interpretation of Charter rights and Charter remedies), that is to say, by the courts of justice?: Ibid at para 14. 214 Ibid at paras 15?16. This concern about administrative bodies granting remedies was also evident in Mooring v Canada (National Parole Board),  1 SCR 75. In that case, the Court considered whether the National Parole Board was a court of competent jurisdiction for the purpose of excluding evidence under s. 24(2) of the Charter, which provides that where a court concludes that evidence was obtained in a manner that infringed or 44 their view, an administrative body cannot remedy the fact that the law is invalid, it ?can only remark that it is so? because ?the drafters of the Constitution have decided that such a task, like declaring a law invalid, is within the realm of the courts?.215 This tension over administrative agencies? jurisdiction over Charter remedies and the institutional role of administrative agencies again came to the fore in the 1996 case of Cooper v Canada (Human Rights Commission) [Cooper].216 In Cooper, the Court was asked to determine the jurisdiction of the Canadian Human Rights Commission to rule on the constitutionality of a provision of its enabling statute. The diverging approaches taken by the members of the Court highlight the conceptual debate about the institutional role of administrative bodies within the context of jurisdiction to rule on the validity of statutory provisions under s. 52 of the Constitution Act, 1982. The majority held that the Commission did not have jurisdiction to decide Charter claims under s. 52 because it had no power to determine ?questions of law?. In their view, while all administrative bodies must have the power to interpret and apply their own enabling statutes, this does not amount to a power to determine general questions of law and ?[t]o decide otherwise would be to accept that all administrative bodies and tribunals are competent to question the constitutional validity of their enabling statutes?.217 Administrative bodies and tribunals are ?creatures of statute; the will of the legislature as it appears therein must be denied any Charter rights or freedoms, the evidence shall be excluded (if admission would bring the administration of justice into disrepute). The majority considered the third step of the Mills test determinative, and concluded that the Board could not exclude evidence under s. 24(2) because the ability to exclude evidence would have been inconsistent with the intent and specific provisions of the Board?s statutory scheme: Ibid at para 28. The dissent (Major J with McLachlin J), however, criticized the majority?s implicit resurrection of the idea that only courts could be ?courts of competent jurisdiction?, and argued that the policy considerations underlying the Court?s reasoning in the Cuddy Chicks trilogy applied equally in cases arising under s. 24: Ibid at para 64. 215 Weber, supra note 210 at paras 20?21. 216 Cooper v Canada (Human Rights Commission),  3 SCR 854. 217 Ibid at para 54. The Cooper case arose from a complaint by two airline pilots to the Canadian Human Rights Commission in which they claimed that that s. 15(c) of the Canadian Human Rights Act (which provided that no discrimination occurred if persons were retired at the ?normal age of retirement? for employees in similar positions) violated the s. 15 of the Charter. 45 respected?.218 In the majority?s view, the Commission?s determination of its jurisdiction over a given complaint through reference to the provisions of the Act (including division of powers questions) ?is conceptually different from subjecting the same provisions to Charter scrutiny [because the] former represents an application of Parliament?s intent as reflected in the Act while the latter involves ignoring that intent?.219 In his concurring opinion in Cooper, Lamer CJC urged the Court to abandon the principles set out in the Cuddy Chicks trilogy. Lamer CJC suggested that those decisions ?stand in contradiction to two fundamental principles of the Canadian constitution ? the separation of powers and Parliamentary democracy?.220 In his view, ?as a matter of constitutional principle?, the power to question legislation must be reserved for the courts and should not be ?given over to bodies that are mere creatures of the legislature?.221 The courts must have exclusive jurisdiction over challenges to the constitutional validity of legislation,222 and particularly the Charter, because:223 [O]nly courts have the requisite independence to be entrusted with the constitutional scrutiny of legislation when that scrutiny leads a court to declare invalid an enactment of the legislature. Mere creatures of the legislature, whose very existence can be terminated at the stroke of a legislative pen, whose members, while the tribunal is in existence, usually serve at the pleasure of the government of the day, and whose decisions in some 218 Ibid. The majority was influenced by beliefs that: the Commission lacked expertise with respect to questions of law; that any gain in efficiency would be lost through the inevitable judicial review of a tribunal?s constitutional determinations; that the tribunals? loose evidentiary rules and lack of procedural safeguards were unsuited to constitutional litigation; and that dealing with constitutional matters would interfere with one of the Commission?s aims (the efficient and timely adjudication of complaints): Ibid at paras 60?61. 219 Cooper, supra note 216 at para 57. The Court suggested that Commission?s role as an administrative and screening body, with no adjudicative role, is a clear indication that Parliament did not intend the Commission to have the power to consider questions of law: Ibid at para 58. However, the majority also extended this analysis to the Tribunal, stating that ?logic demands that it has no ability to question the constitutional validity of a limiting provision of the Act?: Ibid at para 67. 220 Cooper, supra note 216 at para 28, Lamer CJC. He feared that, by giving administrative tribunals access to s. 52, those decisions ?may have misunderstood and distorted the web of institutional relationships between the legislature, the executive and the judiciary which continue to form the backbone of our constitutional system, even in the post-Charter era?: Ibid at para 3. 221 Cooper, supra note 216 at para 2 [emphasis in original]. 222 In Lamer CJC?s view, s. 52 ?can only be used by the courts of this country, because the task of declaring invalid legislation enacted by a democratically elected legislature is within the exclusive domain of the judiciary?: Ibid at para 3. 223 Ibid at para 13. 46 circumstances are properly governed by guidelines established by the executive branch of government, are not suited to this task. Furthermore, Lamer CJC argued, when tribunals refuse to apply their enabling legislation under s. 52 they are improperly exercising the role of the courts.224 To give administrative tribunals jurisdiction over the Charter ?invert[s] this hierarchical relationship? because instead of being subject to the laws of the legislature, the executive can defeat the laws of the legislature.225 In dissent, McLachlin J (as she then was, with L?Heureux-Dub? J concurring) asserted that citizens have the same right to expect that the Charter will be followed and applied by the administrative arm of government as by legislators, bureaucrats and the police, and when the state ?sets up an institution to exercise power over people, then the people may properly expect that that institution will apply the Charter?.226 McLachlin J pointed out that the Constitution Act, 1982 ?does not speak in terms of bodies possessing power to invalidate laws. Rather, it pronounces the laws invalid, to the extent of their inconsistency with the Charter.?227 Therefore, while a tribunal can do only that which its constituent statute empowers it to do, if the tribunal is empowered to decide questions of law, that power extends to all the law.228 McLachlin J summarized the dissent?s view as follows:229 ?[E]very tribunal charged with the duty of deciding issues of law has the concomitant power to do so. The fact that the question of law concerns the effect of the Charter does not change the matter. The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law- 224 Ibid at para 19. 225 Ibid at para 25. He stated: ?Surely, a legislature intent on passing a constitutionally suspect law would not plant within that law the seeds of its own demise?: Ibid at para 7. 226 Cooper, supra note 216 at para 78. 227 Ibid at para 83. 228 Furthermore, absent an indication that the legislature intended to exclude Charter issues from the tribunal?s purview, ?the courts should not do so by judicial fiat?: Ibid at para 81. 229 Ibid at para 70. The dissent found that the Commission?s power to consider questions of law could be inferred from the statutory scheme. In particular, the Commission would not be able to accomplish many of its duties (as assigned by the legislature) without the power to consider issues of law: Ibid at para 93. They therefore concluded that both the Commission and the tribunal are empowered to assess the constitutionality of provisions in their enabling statute. 47 makers that touch the people must conform to it. ? If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals. ? if Parliament confers on the tribunal the power to decide questions of law, that power must, in the absence of counter-indications, be taken to extend to the Charter, and to the question of whether the Charter renders portions of its enabling statute unconstitutional.? This conception, and openness to administrative actors interpreting and applying the Charter,230 was picked up in Nova Scotia (Workers? Compensation Board) v Martin [Martin].231 In Martin, the (unanimous) Court expressly rejected the Cooper majority and concurring judgments and affirmed the principles emerging from the Cuddy Chicks trilogy and the Cooper dissent. Gonthier J, writing for a unanimous Court, expressly rejected Lamer CJC?s views in Cooper and the ratio of the majority judgment.232 The Court thus affirmed the main principles emerging from the Cuddy Chicks trilogy, and concluded that, subject to an express contrary intention, an administrative agency given statutory authority to consider questions of law arising under a legislative provision is presumed to have the jurisdiction to determine the constitutional validity of that provision under the Charter.233 In coming to this conclusion, the Court explained that s. 52(1) provides that any law that is inconsistent with the Constitution is of no force and effect so, in principle, such a provision is invalid from the moment it is enacted.234 All levels and branches of government have an obligation not to 230 Van Harten, Mullan & Heckman, supra note 161 at 896. 231 Nova Scotia (Workers? Compensation Board) v Martin,  2 SCR 504. 232 Particularly insofar as it distinguished between limited and general questions of law or that it suggested that an adjudicative function is a prerequisite for a tribunal?s constitutional jurisdiction: Ibid at para 47. 233 The relevant question is whether the empowering legislation grants the tribunal the jurisdiction to interpret or decide any question of law. The Charter is not invoked as a separate subject matter that the tribunal must be found to have ?jurisdiction? over but rather is a controlling norm in decisions over matters within the tribunal?s jurisdiction: Ibid at paras 35?39. This presumption is rebutted if the tribunal?s enabling statute clearly demonstrates that the legislature intended to exclude the Charter from the tribunal?s jurisdiction: Ibid at paras 35?42. Applying this test in Martin, the Court concluded that the Workers? Compensation Board, as well as the Appeals Tribunal, had the jurisdiction to review the constitutional validity of its enabling statute, since both statutory bodies had authority to decide questions of law. 234 Martin, supra note 231 at para 28. 48 apply invalid laws,235 and Canadians should be entitled to assert their Charter rights and freedoms in the most accessible forum available, without the need for parallel proceedings before the courts.236 Further, Charter disputes require a ?thorough understanding of the objectives of the legislative scheme being challenged, as well as of the practical constraints it faces and the consequences of proposed constitutional remedies?,237 so administrative bodies? consideration of Charter issues allows courts to ?benefit from a full record established by a specialized tribunal fully apprised of the policy and practical issues relevant to the Charter claim?.238 The Court also suggested that allowing administrative agencies to decide Charter issues does not undermine the role of the courts as ?final arbiters of constitutionality in Canada? because administrative decisions on the Charter are subject to judicial review on a correctness standard.239 The appropriateness of a correctness or reasonableness standard of review in the context of administrative decisions impacting on Charter guarantees was, however, a matter of some debate, as seen in the following cases. 2.3.2 Debate over a Charter or administrative law approach 220.127.116.11 A move toward unity In a string of cases from 1999 to 2003, the Court appeared to move away from the Slaight framework, and declined to undertake a Charter review despite arguments by the parties that the impugned administrative decision infringed the Charter. In Baker v Canada (Minister of Citizenship and Immigration) [Baker],240 although the appellant raised Charter arguments, L?Heureux-Dub? J (for the majority) held that it was ?unnecessary consider the 235 He stated: ?[T]he consistency of a provision with the Constitution is a question of law arising under that provision. It is, indeed, the most fundamental question of law one could conceive, as it will determine whether the enactment is in fact valid law, and thus whether it ought to be interpreted and applied as such or disregarded?: Ibid. 236 Ibid at para 29. 237 Ibid at para 30. 238 Ibid at para 56. See also Ibid at para 30. 239 Martin, supra note 231 at para 31. 240 Baker, supra note 9. 49 various Charter issues? because ?the issues raised can be resolved under the principles of administrative law and statutory interpretation?.241 The Court therefore adjudicated the appellant?s claims solely by reference to common law principles.242 Similarly, in Trinity Western University v British Columbia College of Teachers [Trinity Western],243 Iacobucci and Bastarache JJ (for the majority) adopted the appellant?s description of the case as ?really an administrative law case?,244 and therefore declined to follow the Slaight approach. Except for noting that the administrative law approach is ?convenient?,245 the majority did not expand upon this refusal to review the College?s decision under the Charter but appear to have been unconvinced that a Charter right was infringed.246 The majority focused on the College?s lack of expertise in relation to human rights matters in coming to the conclusion that they should apply a correctness standard of review,247 and 241 Ibid at para 11. The Court did, however, note that ?discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter?: Ibid at para 56. The Court?s failure to consider the Charter in this case potentially ?short changed? the applicant: David Mullan, ?Deference from Baker to Suresh and Beyond ? Interpreting the Conflicting Signals? in David Dyzenhaus, ed, The Unity of Public Law (Portland, Oregon: Hart Publishing, 2004) 21 at 35. While Mullan acknowledged that it could be said that the applicant?s success compensated for this omission, he argued that the way in which the outcome was achieved was ?troubling? in that it failed to answer whether the applicant?s Charter rights were engaged. 242 Iacobucci and Cory JJ dissented on the point of the effect of international law on the exercise of ministerial discretion but noted that, had the Court concluded that the appellant?s claim fell within the ambit of rights protected by the Charter, the Court the presumption that administrative discretion involving Charter rights be exercised in accordance with similar international human rights norms: Baker, supra note 9 at para 81. 243 Trinity Western, supra note 9. This case arose from the British Columbia College of Teachers? refusal to grant the Trinity Western University permission to assume full responsibility for its teacher-training program on the basis that the University was promoting a culture of discrimination. In particular, the University required faculty and students to sign a document that described homosexual behaviour as a ?sexual sin?: Ibid at paras 4?6. 244 Trinity Western, supra note 9 at para 8. 245 Ibid. 246 Ibid at para 36. The Court did note that the College?s decision involved determining the scope of freedom of religion and weighing that freedom against the right to equality; however, they did not review the decision under the Charter. The majority further noted that ?[t]he issue at the heart of this appeal is how to reconcile the religious freedoms of individuals wishing to attend TWU with the equality concerns of students in B.C.?s public school system?: Ibid at para 28. It is possible that issues of standing also influenced majorities in Trinity Western (and Chamberlain) to opt for review under admin law rather than the Charter: see Fox-Decent & Pless, supra note 6. 247 In particular, the majority noted that: the College?s expertise does not qualify it to interpret the scope of human rights nor to reconcile competing rights; the College relied on someone else?s expertise (a legal opinion); the decision on discrimination was based on interpretation of documents and human rights values and principles, so was a question of law concerned with human rights and not essentially educational matters; and, the College is not particularly well equipped to determine the scope of freedom of religion and conscience and to weigh these 50 concluded the College had erred by not taking into account the impact of its decision on the right to freedom of religion.248 In contrast, L?Heureux-Dub? J disagreed that the College lacked the necessary expertise,249 and argued that the College?s decision should be reviewed both on a patent unreasonableness standard and then under the Charter.250 Members of the Court diverged once again in their approach in Chamberlain v Surrey School District No. 36 [Chamberlain],251 disagreeing on the level of deference appropriate where the administrative agency was an elected body with some expertise (a school board) considering a question with a ?human rights dimension?. The majority held that the case ?does not fall to be determined on the basis of the Charter?,252 and that the decision should be reviewed on a standard of reasonableness simpliciter.253 In dissent, Gonthier and Bastarache JJ agreed that the case should be dealt with under an administrative law approach but expressed concern about the majority?s assumption that courts possess greater expertise on all questions with a human rights component.254 LeBel J took another approach again. In his view, the Board was authorized to make decisions not because it has any special expertise but rights against the right to equality in the context of a pluralistic society: Trinity Western, supra note 9 at paras 17?19. 248 Ibid at para 43. 249 L?Heureux Dub? J stated that it was ?a misconception to characterize the [body?s] decision as being a balancing or interpretation of human rights values, an exercise that is beyond the tribunal?s expertise?: Ibid at para 59. 250 Ibid at para 51. After finding that the College?s decision was not patently unreasonable (Ibid at para 91.), L?Heureux Dub? J undertook a Charter review and that there was no violation of s. 15 (110), and while finding a violation of s. 2(b), the College?s decision is justified under s. 1: Ibid at para 93. 251 Chamberlain, supra note 9. This case arose from a challenge to a resolution passed by the Surrey School Board refusing to authorize three books for classroom instruction on the ground that they depicted families in which both parents were the same sex. 252 Ibid at para 73. 253 In the majority?s view, courts ?are well placed to resolve human rights issues?, and deference is not appropriate when the courts expertise equal to or better than that of the board relative to the particular human rights issue that is faced: Ibid at para 11. The majority concluded that the Board?s decision not to approve the proposed books was unreasonable because the Board failed to act in accordance with the School Act: Ibid at para 73. 254 Chamberlain, supra note 9 at para 143. However, they concluded that the Board?s decision was reasonable as the decision was intra vires the Board under the School Act and was ?clearly reasonable? and ?respectful of ss. 2(a), 2(b) and 15 of the Canadian Charter?: Ibid at para 76. In their view, the decision ?reflects a constitutionally acceptable balance?: Ibid at para 132. 51 because it represents the community,255 and so the Board should be answerable to the community not to the courts.256 Therefore, the Board?s educational policy decisions, as long as they are made validly pursuant to its powers, should be entitled to a very high level of deference.257 A further case in which the Court undertook an administrative law review despite the clear relevance of the Charter was Suresh v Canada (Minister of Citizenship and Immigration) [Suresh].258 While the (unanimous) Court recognized that the question of whether a refugee constitutes a danger to the security of Canada engages s. 7 of the Charter, the Court stated ?it is our view that a deferential standard of ministerial review will not prevent human rights issues from being fully addressed, provided proper procedural safeguards are in place and provided that any decision to deport meets the constitutional requirements of the Charter?.259 In the Court?s view, a deferential approach was appropriate because the Minister?s decision in 255 Chamberlain, supra note 9 at para 193. LeBel J stated that ?both a school board and a municipality are unlike a legislature, which has plenary law-making power within the limits of the Constitution? (at para 196). 256 LeBel J explained that it is important to keep the line dividing the role of a local government body from that of a reviewing court distinct, for it helps to maintain the separation between the judiciary and representative government. Courts should not be tempted to replace the decisions of such bodies with their own view of what is reasonable, or to ?become unduly involved in the management of towns, cities and schools?: Ibid at para 205. 257 Ibid at para 201. LeBel J concluded, however, that the Board?s decision was so clearly contrary to an obligation set out in its enabling statute that it was not just unreasonable but illegal: Ibid at para 189. 258 Suresh v Canada (Minister of Citizenship and Immigration),  1 SCR 3. This case involved a challenge to the Minister?s decision that a Convention refugee detained on a security certificate constituted a danger to the security of Canada and should be deported, notwithstanding an acknowledgement that he would face a risk of torture upon his return to Sri Lanka. See also Pinet, supra note 9. In that case, Binnie J used a reasonableness standard to review a decision of the Ontario Review Board to return the appellant to a maximum-security hospital for compliance with s. 7 of the Charter. The Court observed that a reasonableness review best reflected ?the expertise of the members appointed to Review Boards? (at para 22). The Court made clear that the liberty interest of the individual should be ?a major preoccupation? of the Review Board, suggesting that the Court would be justified in intervening if the Board failed to take the s. 7 rights adequately into account in balancing the various considerations bearing upon its decision: see David Mullan, ?Section 7 and Administrative Law Deference ? No Room at the Inn?? (2006) 34 Sup Ct L Rev 227 at 247. 259 Suresh, supra note 258 at para 32. Mr. Suresh also challenged the legislative provision granting the Minister the discretionary authority to deport but the Court concluded that the statute does not violate s. 7 of the Charter, so ?[w]hat is at issue is not the legislation, but the Minister?s obligation to exercise the discretion s. 53 confers in a constitutional manner?: Ibid at para 79. 52 that context requires a fact-driven inquiry involving the weighing of various factors and possessing a ?negligible legal dimension?.260 Genevieve Cartier suggested that, following these cases, the public law branches of administrative law and constitutional law were moving towards unification.261 She suggested that the approach taken in Baker undermines the hierarchical view of relationship between the Charter and administrative law set out in Slaight and Ross, and paved the way for a more unified and coordinated relationship. However, the Court did not consistently apply a unified approach,262 and there existed the possibility of review under the Charter if the decision survived preliminary scrutiny under the administrative law approach (as L?Heureux-Dub? J did in Trinity Western).263 The case of Multani v Commission scolaire Marguerite-Bourgeoys [Multani]264 provides an excellent illustration of the struggle within the Court about the appropriate analytical approach in cases involving administrative decisions that impact on Charter rights or freedoms. 18.104.22.168 Pinnacle of the debate: Multani In Multani, a majority of the Court applied a Charter analysis to a school board?s decision to ban a student from wearing a religiously-significant dagger to school. The majority approach relied upon the purpose of the judicial review exercise before the Court,265 holding 260 Suresh, supra note 258 at para 39. In balancing a variety of factors (including concerns of national security and fair process to the Convention refugee), however, the Minister must exercise his or her discretion in conformity with the values of the Charter: Ibid at para 106. In this case, the Minister?s decision was unreasonable because Mr. Suresh was not provided with an adequate level of procedural protections. Regarding the relationship between s. 7 procedural protections and common law procedural fairness, the Court stated: ?At the end of the day, the common law is not constitutionalized; it is used to inform the constitutional principles that apply to this case?: Ibid at para 114. 261 Cartier, Genevi?ve, supra note 25 at 72?86. See above, Section 2.1.1 for an explanation what Cartier means by ?unification?. 262 See, for example, Little Sisters Book and Art Emporium v Canada (Minister of Justice) [Little Sisters],  2 SCR 1120. 263 See also cases in which the requested outcome was achieved through an administrative law review, so turning to the Charter was unnecessary: Baker, supra note 9; Chamberlain, supra note 9. 264 Multani, supra note 7. 265 See Ibid at paras 18?21. 53 that ?the central issue in the instant case is best suited to a s. 1 analysis?.266 In contrast, Abella J (with Deschamps J) argued that an administrative analysis should be conducted because the Court was assessing an administrative decision rather than a rule or ?norm of general application?.267 They proposed that the general principles of judicial review of administrative action should apply to all exercises of discretion, including those that engage Charter rights and freedoms. They cited two main reasons for this conclusion: first, the purpose of constitutional justification is to assess a norm of general application, so the Charter approach is ?not easily transportable where what must be assessed is the validity of an administrative body?s decision?; second, problems result from blurring the distinction between the principles of constitutional justification and the principles of administrative law, and retaining the distinction prevents the impairment of the analytical tools developed specifically for each of these fields.268 LeBel J essentially agreed with the majority that a constitutional analysis was appropriate but proposed a revised Oakes test for cases involving administrative decisions.269 He suggested that, when reviewing administrative decisions impacting on Charter guarantees, ?[t]he issue becomes one of proportionality or, more specifically, minimal limitation of the guaranteed right, having regard to the context in which the right has been infringed?.270 Despite the different approaches taken, however, all members of the Court concluded that the school board?s decision was ?null?,271 or ?unreasonable?.272 266 Ibid at para 31. 267 Ibid at para 103, Deschamps and Abella JJ. 268 Ibid at para 85. 269 Ibid at paras 140?155. 270 Ibid at para 155. 271 Ibid at para 82. 272 Ibid at para 99. Abella and Deschamps JJ concluded that the school board?s decision was unreasonable because the board failed to take into consideration Multani?s rights. 54 22.214.171.124.1 Institutional roles In conducting the Charter review, the majority in Multani did not recognize any need for deference to the school board?s decision in the administrative law sense. While acknowledging that the courts ?must accord some leeway? to the decision-maker, and that the decision must come ?within a range of reasonable alternatives?,273 the majority engaged in its own assessment of the evidence and arguments.274 In contrast, Abella J explicitly recognized the school board?s expertise, stating that ?[w]here safety in the schools under its responsibility is concerned, the respondent school board unquestionably has greater expertise than does a court of law reviewing its decision?.275 She highlighted the changes in the Court?s approach to review of administrative decisions, which ?were meant to acknowledge the expertise and the specific nature of the work of administrative boards and should not be disregarded simply because a party argues that a constitutional justification analysis is instead appropriate?.276 Abella J also highlighted problems she foresaw with the constitutional approach, in particular that administrative bodies, ?like the courts?, ?cannot be treated as parties with an interest in a dispute?.277 She envisioned problems with placing the burden of proof onto administrative bodies, and with requiring an administrative body with quasi-judicial functions to adduce evidence to justify its decision under s. 1 ?in light of the fact that it is supposed to be independent of the government?.278 Thus Abella J concluded that the same rules should not apply to the review of legislative action as to the review of the exercise of adjudicative authority.279 273 Ibid at paras 50?51. 274 As Mullan says, ?with not a whiff of deference or suggestion that there might be room for another opinion or assessment of the situation?: Mullan, supra note 258 at 241. 275 Multani, supra note 7 at para 96. 276 Ibid at para 101. 277 Ibid at para 123. 278 Ibid at para 132. 279 Ibid. The approach proposed by Abella and Deschamps JJ can be traced back to cases applying the Slaight principles to judicial discretion. For example, in Dagenais, where Lamer CJC (for the majority on this issue) 55 126.96.36.199.2 Discretion and the rule of law In Multani, the majority held that a limit of a guaranteed right resulting from the decision maker?s actions is ?prescribed by law? within the meaning of s. 1 of the Charter when the delegated power is exercised in accordance with the enabling legislation. Charron J explained that any infringement of a guaranteed right that results from the decision maker?s actions is also a limit ?prescribed by law? within the meaning of s. 1 but when the delegated power is not exercised in accordance with the enabling legislation, that decision is not authorized by statute, so is not a limit ?prescribed by law?.280 Abella and Deschamps JJ disagreed with this reasoning, instead arguing that the expression ?law? should not include the decisions of administrative bodies,281 and advocating a distinction between general norms and individualized decisions. In their view, an administrative decision is not a law or regulation but rather ?the result of a process provided for by statute and by the principles of administrative law in a given case? and ?[e]stablishing a norm and resolving a dispute are not usually considered equivalent processes?.282 They suggested that the fact that justification of a limit under s. 1 of the Charter is based on the collective interest also suggests that the expression ?law? should be limited to rules of general application.283 They were concerned that, if administrative decisions were included in the concept of ?law?, it would be necessary in every case to begin by assessing the validity of the statutory or regulatory provision on which the decision is based.284 Therefore, in their opinion, while a Charter analysis must be carried out when reviewing the validity or stated that a judge?s discretion to order a publication ban was subject to the Slaight principle, and thus had to be ?exercised within the boundaries set by the principles of the Charter?: Dagenais v Canadian Broadcasting Corp.,  3 SCR 835 at 875. 280 Multani, supra note 7 at 22. 281 Ibid at para 125. Leckey suggests that this debate cannot be understood without an appreciation of both the French and English language versions of s. 1: see Robert Leckey, ?Prescribed by Law/Une Regle de Droit? (2007) 45 Osgoode Hall LJ 571. 282 Multani, supra note 7 at para 112. 283 Ibid at para 119. 284 Ibid at para 118. 56 enforceability of a norm (such as a law or other rule of general application), the administrative law approach should be retained for administrative decisions.285 In his concurring opinion, LeBel J raised concerns about the ?norm-decision? duality preferred by Abella and Deschamps JJ, which he suggested underestimates the problems that arise in applying the classifications and ?entails a risk of narrowing the scope of constitutional review of compliance with the Canadian Charter and its underlying values?.286 188.8.131.52.3 Coherence of approach The majority in Multani warned against allowing the fundamental values contained in the Charter to be reduced into ?mere administrative law principles?.287 Charron J emphasized that the rights and freedoms guaranteed by the Charter ?establish a minimum constitutional protection that must be taken into account by the legislature and by every person or body subject to the Canadian Charter?, and the ?role of constitutional law is therefore to define the scope of the protection of these rights and freedoms?.288 Furthermore, it is of little importance to an individual whose Charter rights or freedoms are infringed whether that infringement ?derives from the actual wording of a normative rule or merely from the application of such a rule?.289 Therefore, the same requirements should apply to both laws and individualized decisions in order for them to be found to be constitutional. Abella and Deschamps JJ disagreed that there is any advantage in adopting this ?unified approach? to reviewing laws and administrative decisions.290 Abella J asserted that, if an 285 Ibid at para 103. They were also concerned that administrative decision-makers would engage in ?formalistic? analysis if their decisions were reviewed for compliance with the Oakes test: Ibid at para 120. 286 Multani, supra note 7 at para 151. 287 Ibid at para 16. The Multani majority approach can thus be seen as a rejection of the unity of public law thesis, which supports a substantive value-laden role for administrative law: Gratton & Sossin, supra note 5 at 157. 288 Multani, supra note 7 at para 16. 289 Ibid at para 21. 290 Ibid at para 109. They stated that ?it is difficult to imagine a decision that would be considered reasonable or correct even though it conflicted with constitutional values?. This reference to ?unified approach? does not refer to the ?unity of public law? thesis (explained in Section 2.1.1) but rather to taking a unified or identical approach 57 administrative body makes a decision or order that conflicts with fundamental values, ?the mechanisms of administrative law are readily available to meet the needs of individuals whose rights have been violated?, by seeking to have the decision be quashed through a court declaration that it is unreasonable or incorrect.291 In their view, the separate constitutional law and administrative law approaches are conceptually distinct,292 and, if the constitutional law and administrative law approaches were not kept distinct, the ?lack of coherence in the analysis can only be detrimental to the exercise of human rights?.293 LeBel J, however, was of the view that the different legal methodologies raised by the case, while engaging ?diverse legal concepts belonging to fields of law that are in principle separate?, must form part of a coherent legal framework.294 He suggested that it is not always necessary to resort to the Charter and it is better to begin by attempting to solve them by means of administrative law principles. However, when the context of a dispute makes a constitutional analysis ?unavoidable?, the courts should take a hybrid approach.295 In his view, the flexibility in the way s. 1 of the Charter can be applied makes it possible to apply the Charter to a wide range of administrative acts without necessarily being confined by the norm-decision duality.296 Accordingly, LeBel J suggested that when applying s. 1 of the Charter the analytical approach established in Oakes need not be followed in its entirety. In particular, it would be ?pointless to review the objectives of the act? where the statutory when reviewing legislation and when reviewing administrative decisions. I note, however, that it is entirely possible to envision approaches to the review of legislation and administrative decisions that differ in methodology (such that there is not a ?unified approach?) but nonetheless draw upon the shared fundamental values that the unity of public law thesis posits underlie administrative and constitutional law. 291 Ibid at para 128. 292 Ibid at para 132. See below Section 4.1 for an exploration of this concern. 293 Ibid at para 134. Abella J also raised concerns that requiring that decisions of administrative bodies be justifiable under the Oakes test distracts the reviewing court from the objective of the analysis, which relates to the substance of the decision and consists of determining whether it is correct or reasonable in light of the statute, its purposes and context: Ibid at para 120. 294 Multani, supra note 7 at para 141. 295 Ibid at para 144. 296 Ibid at para 151. 58 authority for the decision is not itself challenged, so the issue ?becomes one of proportionality or, more specifically, minimal limitation of the guaranteed right, having regard to the context in which the right has been infringed?.297 Noting that the burden of proving the rights infringement is justified lies with the respondent school board, LeBel J concluded that the school board had not shown that its prohibition was justified. 2.3.3 Increasing coherence? Since Multani, and prior to Dor?, the Court did not confront the debate about the appropriate method of review for administrative decisions that impact on Charter guarantees. For example, in Lake v Canada (Minister of Justice) [Lake],298 the (unanimous) Court undertook an administrative law review despite the appellant?s argument that the Minister?s decision to extradite him would unjustifiably infringe on his rights under s. 6(1) of the Charter. The Court rejected the suggestion that the decision as to whether surrender would unjustifiably infringe an individual?s Charter rights is fundamentally a legal matter and therefore should be subject to judicial review on a correctness standard.299 The Court held that, in the extradition context:300 Whereas the Minister?s discretion must be exercised in accordance with the Charter, his assessment of any Charter infringement that could result from ordering an individual?s surrender is closely intertwined with his responsibility to ensure that Canada fulfills its international obligations. ? the Minister?s assessment of whether the infringement of s. 6(1) is justified rests largely on his decision whether Canada should defer to the interests of the requesting state. This is largely a political decision, not a legal one. The reviewing court thus owes deference to the Minister?s decision, ?including the Minister?s assessment of the individual?s Charter rights?.301 The Minister must apply the proper legal 297 Ibid at para 155. 298 Lake, supra note 9. 299 Ibid at para 39. 300 Ibid at para 37. 301 Ibid at para 49. 59 principles and carry out the proper analysis,302 but the decision should be upheld unless it is ?unreasonable?.303 The court must determine whether the Minister?s decision falls within a range of reasonable outcomes but must not re-weigh the relevant factors and substitute its own view.304 The Court asserted that this approach ?does not minimize the protection afforded by the Charter?, but rather reflects that the assessment is primarily a fact-based balancing test that the Minister is in the best position to carry out.305 However, the Court was clear that the Minister?s ?discretion will be interfered with in only the clearest of cases, such as where there is evidence of bad faith or improper motives?.306 In Canada (Prime Minister) v Khadr [Khadr],307 the Court also adopted an administrative reasonableness review, expressing the need to respect the separation of powers. While finding that Mr. Khadr?s s. 7 rights were being breached on an ongoing basis,308 the Court held that the decision not to request Mr. Khadr?s repatriation was ?made in the exercise of the prerogative over foreign relations?,309 and therefore courts had only a limited power to review this exercise of the prerogative power for constitutionality.310 Therefore, in light of ?the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations?, the Court concluded that the proper remedy for the breach of Mr. Khadr?s 302 Ibid at para 41. 303 Ibid at para 49. 304 Ibid at para 41. The court must determine whether the Minister carried out the proper analysis, considered the relevant facts, and reached a defensible conclusion on those facts: Ibid. 305 Lake, supra note 9 at para 41. 306 Ibid at para 30. 307 Khadr, supra note 65. This case considered the Prime Minister?s decision not to request Mr. Khadr?s repatriation from the United States military base at Guantanamo Bay. 308 Ibid at para 30. 309 Ibid at para 35. 310 Ibid at paras 35?37. The Court stated at para 37: ?judicial review of the exercise of the prerogative power for constitutionality remains sensitive to the fact that the executive branch of government is responsible for decisions under this power, and that the executive is better placed to make such decisions within a range of constitutional options [and] it is for the courts to determine the legal and constitutional limits within which such decisions are to be taken.? 60 rights was to grant a declaration that his Charter rights have been infringed, ?while leaving the government a measure of discretion in deciding how best to respond?.311 However, the Court has not consistently conducted an administrative law review in the post-Multani cases raising Charter and administrative law issues. For example, in Greater Vancouver Transportation Authority v Canadian Federation of Students - British Columbia Component [Vancouver Transit],312 the Court distinguished between discretionary decisions and ?law?, finding that transit authorities? policies were ?law? for the purposes of s. 1 of the Charter.313 On this basis, the Court conducted a Charter review of the policies. In the 2011 decision of Canada (Attorney General) v PHS Community Services Society [Canada v PHS],314 the Court also undertook a Charter analysis of a discretionary decision. In that case, the applicants argued that the criminal prohibition of possession was, in its application to Insite (a safe injection site), an infringement of s. 7 of the Charter.315 The Court held that the legislation itself did not infringe s. 7. The Court held that the legislation did infringe upon the ?liberty? of the staff and patients of the clinic, as well as the ?life? and ?security of the person? of Insite?s clients. However the legislation itself was not in breach of s. 7 as it conformed with the principles of fundamental justice because the Minister has the power to grant exemptions to the application of that legislation and this discretion to grant an 311 Ibid at para 2. In deciding that the proper remedy was to ?leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter? (Ibid at para 39), the Court highlighted ?the evidentiary uncertainties, the limitations of the Court?s institutional competence, and the need to respect the prerogative powers of the executive?: Ibid at para 46. 312 Vancouver Transit, supra note 7. This case arose from the decision of the Greater Vancouver Transportation Authority and British Columbia Transit (the ?transit authorities?) refusing to post the respondents? political advertisements on the sides of buses on the basis that their advertising policies permitted commercial but not political advertising. The respondents argued that this violated their right to freedom of expression (guaranteed by s. 2(b) of the Charter). 313 Ibid at para 58. 314 Canada v PHS, supra note 105. The Minister of Health had refused to grant an exemption (by his discretionary authority under the Controlled Drugs and Substances Act, SC 1996, c 19, s. 56) to a Vancouver safe injection site from federal laws prohibiting possession and trafficking of drugs. 315 Section 7 of the Charter provides: ?Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice?: Charter, supra note 1 at s 7. 61 exemption ?acts as a safety valve that prevents [the legislation] applying where such application would be arbitrary, overbroad or grossly disproportionate in its effects?.316 However, the Minister of Health?s decision to deny Insite an exemption to the legislation was in breach of s. 7. The Court held that the Minister?s decision was a denial of the principles of fundamental justice because it disregarded the evidence that Insite had saved lives and prevented injury and disease,317 without any countervailing adverse effects on public safety (or anything else). The effect of the Minister?s decision (the closure of Insite) was ?grossly disproportionate? to any state interest in maintaining an absolute prohibition of possession of illegal drugs on Insite?s premises. The Minister?s decision was also ?arbitrary, undermining the very purposes of [the Act], which include public health and safety?.318 The Court noted that the Minister was obliged to exercise his discretion under s. 56 in compliance with s. 7, and had failed to do so. In reviewing the Minister?s decision for compliance with s. 7 of the Charter, the Court made no reference to showing the Minister any deference. 2.3.4 A merging of ?universes?: Conway In the 2010 case of R v Conway [Conway],319 the Court sought to resolve the diverging approaches evident in the Court?s jurisprudence on administrative bodies? jurisdiction to decide Charter issues. The Court historically applied different tests to determine whether a tribunal had jurisdiction under s. 24 of the Charter compared to jurisdiction under s. 52 of the Constitution Act, 1982.320 In Conway, the Court ?merged? these tests. Abella J (for the Court) traced the history the three Charter/administrative law ?jurisprudential waves?,321 pointing out 316 Canada v PHS, supra note 105 at para 114. 317 The Minister was of the view that the scientific evidence with respect to Insite?s effectiveness was mixed and that it was ?a failure of public policy?: Ibid at para 122. The Court disagreed, pointing to the trial judge?s findings indicating that Insite in fact furthers the legislative objectives of public health and safety. 318 See Ibid at para 116?140. 319 R v Conway, 2010 SCC 22. 320 These tests are outlined in Section 2.3.1. 321 That is, those cases considering administrative bodies? jurisdiction under s. 24(1), jurisdiction under s. 52, and 62 that the jurisprudence has confined constitutional issues relating to administrative tribunals to ?three discrete universes?.322 She suggested that, ?after 25 years of parallel evolution, it is time to consider whether the universes can appropriately be merged?.323 Abella J suggested that the cases ?show how the Court increasingly came to expand the application of the Charter in the administrative sphere?.324 Furthermore, the jurisprudence ?has confirmed the practical advantages and constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts and administrative tribunals?.325 Bifurcating claims is undesirable because it would be ?inconsistent with the well-established principle that an administrative tribunal is to decide all matters, including constitutional questions, whose essential factual character falls within the tribunal?s specialized statutory jurisdiction?, and would deny early access to remedies for Charter violations.326 In light of this evolution, the Court concluded that it was no longer helpful to limit the inquiry to whether a tribunal is a court of competent jurisdiction only for the purposes of a particular remedy: the question should be ?institutional?.327 The Court therefore ?merged? the jurisdictional tests such that administrative tribunals with the authority to decide questions of law (and whose constitutional jurisdiction has not been clearly withdrawn) have the corresponding authority and duty to consider and apply the Charter when answering legal questions on matters properly before them.328 This jurisdiction does not, however, expand the the application of the Charter to discretionary decisions. 322 Conway, supra note 319 at para 7. 323 Ibid. 324 Ibid at paras 23, 41. The Court explained that this ?jurisprudential evolution has resulted in this Court?s acceptance not only of the proposition that expert tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction, but also that in exercising their statutory discretion, they must comply with the Charter?: Ibid at para 21. 325 Conway, supra note 319 at para 79. 326 Ibid. 327 Ibid at para 22. 328 Ibid at paras 77?78, 81. This applies to both s. 52 and s. 24(1): Ibid at para 80. This approach is not without 63 range of remedies the tribunal can award, so the second question is whether the tribunal can grant the remedy sought given the relevant statutory scheme.329 It is against this background that the Court issued the Dor? decision. 2.4 Conclusion It was in the context of the push for coherency in Conway, and the divergence within the Court on the approach to reviewing administrative decisions for compliance with the Charter, that the Court considered the Dor? case. As noted in the above historical overview of the relationship between administrative law and the Charter, tensions inherent in the relationship between administrative law and the Charter have caused the Court to diverge on the extent of administrative bodies jurisdiction under s. 24 and s. 52, and how the Charter applies to administrative decisions. In terms of the relationship between administrative bodies and the constitution, the Court has moved toward an approach to the jurisdiction of administrative tribunals that affirms deference as respect. However, the Court has vacillated in its approach to the relationship between administrative law and constitutional law, struggling to employ a methodology that achieves conceptual harmony and coherence between the two branches of public law. A core group of scholars have commented on the issue of the method the courts should employ in reviewing administrative decisions that infringe constitutional rights. Many of these scholars critics; for example, Macklin suggests that authority to determine questions of law seems a tenuous hook upon which to hang Charter jurisdiction: Audrey Macklin, ?The State of Law?s Borders and the Law of States? Borders? in David Dyzenhaus, ed, The Unity of Public Law (Portland, Oregon: Hart Publishing, 2004) 173 at 186. See also Christopher D Bredt & Ewa Krajewska, ?R. v. Conway: UnChartered Territory for Administrative Tribunals? (2011) 54 Sup Ct L Rev, online: <http://pi.library.yorku.ca/ojs/index.php/sclr/article/view/34642>. 329 This requires a determination of legislative intent as to ?whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal?: Conway, supra note 319 at para 82. In this regard, the Court drew on its unanimous decision on the issue of administrative agency jurisdiction over s. 24 remedies in Dunedin, supra note 66. In that case the Court held that the third branch of the Mills test is determined by looking to the function and structure of the tribunal: Ibid at para 75. 64 have advocated for greater harmony between administrative law and constitutional law,330 generally arguing that the courts should not bypass administrative law.331 The Court thus relied on the ?consistently critical? academic commentary following Multani in order to justify the approach taken in Dor? (the ?Dor? approach).332 The following chapter explores the Court?s rationale for adopting this approach. 330 Cartier, Genevi?ve, supra note 25 at 63. 331 See J M Evans, ?The Principles of Fundamental Justice: The Constitution and the Common Law? (1991) 29 Osgoode Hall LJ 51 at 73; Cartier, Genevi?ve, supra note 25; David Mullan, ?Administrative Tribunals and Judicial Review of Charter Issues After Multani? (2006) 21 NJCL 127 at 145. However, others have advocated for a Charter approach: see, e.g. Gratton, supra note 41. 332 Dor?, supra note 11 at para 33. Citing Gratton & Sossin, supra note 5 at 157; Mullan, supra note 331. 65 3 THE DOR? APPROACH In this chapter, I will explore the approach taken in Dor? to the judicial review of administrative decisions that impact on Charter guarantees (the ?Dor? approach?), focusing on the Court?s rationale for adopting this approach and the guidance the Court provides on the form of proportionality analysis to be applied to administrative decisions. I analyze the Dor? approach with reference to existing doctrine used by the Court to determine compliance of legislation with the Charter and in the Charter?s application to the common law, which may be seen as variations of a proportionality analysis. I then offer some conclusions about what the Dor? approach requires of reviewing courts. 3.1 Case history The facts of the Dor? case are set out in the Introduction to this thesis. In brief, Mr. Dor? wrote a letter to a judge (Boilard J), in which he insulted the judge.333 Boilard J filed a complaint against Mr. Dor? with the Barreau du Qu?bec alleging that Mr. Dor? had acted in breach of art. 2.03 of the Code of Ethics of Advocates, which directed that the conduct of lawyers ?must bear the stamp of objectivity, moderation and dignity?.334 The Disciplinary Council of the Barreau found that the letter was likely to offend, rude and insulting,335 and that the judge?s conduct (which had led to a reprimand from the Canadian Judicial Council) could not be relied on as justification for Mr. Dor??s actions.336 The Disciplinary Council rejected Mr. Dor??s argument that art. 2.03 violated s. 2(b) of the Charter. While acknowledging that the provision infringed on freedom of expression, the Council found that the limitation on 333 Including calling the judge: ?loathsome?, ?arrogant? and ?fundamentally unjust?, accusing him of ?hiding behind his status like a coward?, ?having a chronic inability to master any social skills?, being ?pedantic, aggressive and petty?, and having a propensity to use his court to ?launch ugly, vulgar and mean personal attacks?: see Dor?, supra note 11 at para 10. 334 Code of Ethics, supra note 16, art 2.03. 335 Bernard c Dor?, 2006 CanLII 53416 (Barreau du Qu?bec, Disciplinary Committee) (available on http://www.canlii.org/fr/qc/qccdbq/doc/2006/2006canlii53416/2006canlii53416.html) at para 58. 336 Ibid at paras 64?77. 66 freedom of expression is ?entirely reasonable, even necessary, in the Canadian legal system, where lawyers and judges must work together in the interest of justice?.337 While the rules may be seen as restrictions imposed on lawyers in comparison to the freedom enjoyed by other Canadian citizens, the restrictions are imposed in exchange for ?the privileges conferred on lawyers as members of an ?exclusive profession??.338 The Disciplinary Council, taking into consideration the seriousness of Mr. Dor??s conduct and his failure to show remorse (and therefore the potential for similar conduct in the future), reprimanded Mr. Dor? and suspended his ability to practise law for 21 days.339 Mr. Dor? appealed the Disciplinary Council?s decisions to the Tribunal des professions (the Tribunal) on several grounds.340 He did not challenge the constitutionality of art. 2.03 but rather argued that the manner in which the relevant legislation was applied by the Council was unconstitutional because his comments were protected by s. 2(b) of the Charter; in other words he appealed the Council decision on the basis that the decision violated his freedom of expression. The Tribunal des professions upheld the Council?s decision. The Tribunal classified the Council?s decision on whether Mr. Dor??s Charter right to freedom of expression was justifiably limited as one of law that, according to the Multani majority judgment, must be subjected to a constitutional analysis.341 However, citing LeBel J?s judgment in Multani,342 the Tribunal held that a full Oakes analysis under s. 1 of the Charter was inappropriate where a decision was judicial in nature and only applied to one person, and ?[t]he issue becomes one of proportionality or, more specifically, minimal limitation of the 337 Ibid at para 88. 338 Ibid at paras 109?110. 339 Bernard c Dor? (Penalty Decision), supra note 18 at paras 148?170. 340 See Dor? c Avocats (Ordre professionnel des), 2007 QCTP 152 (Tribunal des Professions) (available on www.canlii.org/fr/qc/qctp/doc/2007/2007qctp152/2007qctp152.html). 341 Ibid at paras 21?22, 28. 342 Multani, supra note 7 at para 155. 67 guaranteed right?.343 In the circumstances, the Tribunal found that the Council?s decision to sanction Mr. Dor? was a minimal restriction on freedom of expression.344 Though the Tribunal noted that the penalty imposed by the Council of suspension ?seems harsh?,345 it held that the penalty was not unreasonable, given the gravity of Mr. Dor??s conduct and his lack of remorse.346 On appeal, the Superior Court of Qu?bec upheld the constitutionality of the disciplinary body?s decision and the 21-day suspension.347 The Superior Court found the Tribunal had ?implicitly? held that the restriction was ?justified in a free and democratic society?,348 and concluded that the Tribunal?s reasoning was ?unassailable? and therefore ?reasonable and correct?.349 The Qu?bec Court of Appeal also upheld the suspension, concluding that, while Mr. Dor??s right to free expression had been violated, the breach was minimal and could be justified in light of the professional body?s obligation to protect the public interest, including the integrity of its judiciary.350 The Court of Appeal applied a full s. 1 analysis, albeit in the context of its finding that Mr. Dor??s letter had ?limited importance . . . compared to the values underlying freedom of expression, which are the pursuit of truth, participation in the community, individual self-fulfillment, and human flourishing?.351 The Court of Appeal held that protecting the public and the maintenance of the integrity of the legal system are important objectives, particularly given that lawyers play an important role in the preservation 343 Dor? c Avocats (Ordre professionnel des), supra note 340 at para 69. 344 Ibid at para 76. 345 Ibid at para 123. 346 Ibid at para 135. The Tribunal characterized the Council?s decision on penalty as requiring the application of the reasonableness standard: Ibid at para 31. 347 Dor? c Tribunal des professions, 2008 QCCS 2450 (available on http://www.canlii.org/fr/qc/qccs/doc/2008/2008qccs2450/2008qccs2450.html). 348 Ibid at para 104. 349 Ibid at paras 105 and 149. 350 Dor? v Bernard, 2010 QCCA 24 (available on http://www.canlii.org/en/qc/qcca/doc/2010/2010qcca24/2010qcca24.html). 351 Ibid at para 36. 68 of the integrity of the system of justice.352 The Disciplinary Council?s decision had a rational connection with that objective, especially given the importance of a judge?s position in the judicial system.353 On minimal impairment, assessing both the decision and the sanction, the Court of Appeal held that both were ?measured? and, while the sanction was ?significant?, it was not unreasonable.354 The Court of Appeal concluded by finding that the effects of the decision on freedom of expression are proportional to the objective of the protection of the public and the maintenance of the integrity of the legal system.355 In the Court of Appeal?s view, the infringement was justifiable, as it ?sanctions behaviour that is nothing more than insulting, but it does not restrict, any more than necessary, the appellant?s freedom of expression as a member of a professional order?.356 Having already served his 21-day suspension, Mr. Dor? did not appeal this penalty to the Supreme Court. Instead, he focused on whether the Barreau du Qu?bec had given sufficient weight to his freedom of expression. 3.2 Supreme Court: administrative law or Charter approach? In the Supreme Court?s decision, the Court noted that there was ?some confusion about the appropriate framework to be applied in reviewing administrative decisions for compliance with Charter values?.357 As outlined in Chapter 2, some courts used the same s. 1 Oakes analysis used for determining whether a law complies with the Charter, others used an administrative law approach, and still others used a modified Oakes analysis. As the Court put it in Dor?, the courts have explored different ways of reviewing the constitutionality of 352 Ibid at para 41. 353 Ibid at paras 44?46. 354 ?The impugned decision appears to be measured and, in the present case, is a correct application of section 2.03 of the Code of ethics. The sanction is significant (suspension of the right to practice for twenty-one days). It also involves the stigma attached to disciplinary guilt. It is not, however, unreasonable. In my view, it is a measured sanction of a lawyer who has been found guilty of a serious ethical offence.?: Ibid at para 47. 355 Ibid at para 50. 356 Ibid at para 51. 357 Dor?, supra note 11 at para 23. 69 administrative decisions, ?vacillating between the values-based approach in Baker and the more formalistic template in Slaight?.358 With the Dor? decision, the Court has attempted to resolve the longstanding debate about the appropriate methodological approach to judicial review of administrative decisions for compliance with the Charter.359 Judging from the content and tone of the judgment in Dor?, and the length of time the decision was under reserve,360 addressing this issue did not prove a particularly easy task for the Court. After canvassing the problems associated with applying the Oakes test to discretionary decisions, the unanimous Court concluded that it was possible to reconcile the ?administrative? and ?constitutional? regimes by using an administrative law approach that recognizes statutory discretion must be exercised in accordance with Charter protections. This approach (?the Dor? approach?) requires that, when considering Charter values in the exercise of statutory discretion, an administrative decision-maker must ask how the Charter value at issue will best be protected in light of the statutory objectives, and ?balance the severity of the interference of the Charter protection with the statutory objectives?.361 On judicial review, the fact that Charter interests are implicated does not argue for a different standard of review than would otherwise apply (in this case, reasonableness), and the principles set out in the Dunsmuir case should be applied to determine the appropriate standard of review.362 When reviewing a discretionary decision that impacts on Charter guarantees, the court must assess whether the decision reflects a proportionate balancing of the Charter rights and values at play, and the decision will be found to be reasonable if the decision-maker ?has properly balanced the relevant Charter value with the statutory 358 Ibid at para 31. Referencing Baker, supra note 9; Slaight, supra note 7. 359 Fox-Decent & Pless, supra note 6 at 423. 360 The Supreme Court heard Mr. Dor??s appeal on January 26, 2011 yet did not release its decision until March 22, 2012. 361 Dor?, supra note 11 at para 56. 362 Ibid at para 57. Which, for disciplinary decisions, is reasonableness: Ibid at paras 52?56. 70 objectives?.363 The nature of the balancing exercise required of administrative decision-makers, and the proportionality analysis conducted on judicial review, is explored further below in Section 3.4. 3.3 Rationale for choosing the administrative law approach In this Part, I explore the Court?s preference for the administrative law approach, and the shift from its earlier preference in Slaight for the Charter approach. To justify the shift in approach, the Court suggests that there is now ?a completely revised relationship between the Charter, the courts, and administrative law than the one first encountered in Slaight?.364 The Court cited three key interrelated reasons for its preference for the administrative law approach. First, the Court argued that this approach would open ?an institutional dialogue about the appropriate use and control of discretion, rather than the older command-and-control relationship?.365 Secondly, the Court proposed that Charter analysis is ?poorly suited? to review of discretionary decisions, in particular because there are issues with conceptualizing and applying the Oakes test to administrative decisions and because difficulties arise from the ?prescribed by law? requirement in the context of administrative decisions. Thirdly, the Court suggested that a deferential approach to review of administrative decisions is appropriate, particularly when Charter values are applied in relation to a particular set of facts.366 In the next sections, I explore each of these reasons and offer some conclusions on the Court?s conception of the ?revised relationship? between administrative law and the Charter. 363 Dor?, supra note 11 at para 58. 364 Ibid at para 30. 365 Ibid at para 35. Quoting Mary Liston, ?Governments in Miniature: The Rule of Law in the Administrative State? in Lorne Mitchell Sossin & Colleen M Flood, eds, Administrative Law in Context (Toronto: Emond Montgomery Publications, 2008) 77 at 100. 366 Dor?, supra note 11 at para 37. See Dunsmuir, supra note 10; Suresh, supra note 258. 71 3.3.1 Institutional dialogue 184.108.40.206 Dialogue theory In Canada, the concept of judicial review as part of an institutional dialogue has its origins in Peter Hogg and Allison Bushell?s ?dialogue theory?,367 which provides an explanation of the relationship between the courts and the legislature in the context of judicial review under the Charter. Dialogue theory has been adopted by the Supreme Court as an explanation for and justification of judicial review under the Charter,368 and to describe the relationship among the legislative, executive, and judicial branches of governance.369 Dialogue is said to occur through the process of judicial review of legislation, particularly the process whereby the legislature may respond by enacting a new, less rights-intrusive law following a judicial decision striking down legislation on Charter grounds.370 This dialogue is seen as being enhanced by the courts? approach in requiring government justification for limits on rights under s. 1 of the Charter (the Oakes test),371 as the courts? articulation of the way in which the rights-limiting measure failed (that is, at which step) will allow the legislature to 367 Peter W Hogg & Allison A Bushell, ?The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn?t Such a Bad Thing after All)? (1997) 35 Osgoode Hall LJ 75. 368 See Hogg, Thornton & Wright, supra note 47 at 5. Originally conceived of as an answer to the anti-majoritarian objection to judicial review (Hogg & Bushell, supra note 367 at 105.), the Court has also used dialogue theory to justify judicial review and in considering whether to ?read down? an unconstitutional statute, guide remedial discretion, and inform judicial discretion in ?second look? cases (see Hogg, Thornton & Wright, supra note 47 at 9?25.) In Charter jurisprudence, institutional dialogue refers to a set of linked problems: the scope and resulting legitimacy of judicial review; the preferred approach to interpretation in public law; the place of the courts in the doctrine of the separation of powers (or ?deference? to the legislature); and, institutional routes to obtaining government accountability: Liston, supra note 160 at 78. 369 See for example, Vriend, supra note 140; M v H,  2 SCR 3; R v Mills,  3 SCR 668; Bell ExpressVu Limited Partnership v Rex,  2 SCR 559; Sauv? v Canada (Chief Electoral Officer),  2 SCR 519. The Court has described the relationship among the legislative, executive, and judicial branches of governance as being one of dialogue and mutual respect: Vriend, supra note 140 at paras 136?142. 370 Roach, supra note 82 at 359. The concept of dialogue purports to describe the process by which judicial review constitutes the ?beginning of a dialogue as to how best to reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a whole?: Hogg & Bushell, supra note 367 at 105. Other dialogue scholars, such as Kent Roach, see dialogue as ?an interchange ... between judges and legislators in which the former focus on rights and the latter are allowed to explain why they believe it is necessary to limit rights in the circumstances?: Kent Roach, ?Constitutional, Remedial, and International Dialogues about Rights: The Canadian Experience? (2004) 40 Tex Int?l LJ 537 at 543. 371 The s. 1 ?Oakes test? requires that any limit on a right is in pursuit of a sufficiently important objective, is rationally connected to the objective, minimally impairs the right, and does not have disproportionate effect: Oakes, supra note 8 at 138?139. 72 implement a new measure that is less rights-invasive.372 Clearly articulated and specific judicial reasoning may thus facilitate a constitutional ?dialogue?.373 While institutional dialogue has generally been used to describe the relationship between the judicial and legislative branches of government,374 dialogue theory emerged from a legal process tradition that situates the judicial role in an ongoing collaborative enterprise of democratic governance involving the three branches of governance, and the people.375 Mary Liston has thus advocated for a conception of institutional dialogue that refers to the system of relationships or practices among all participants in the Canadian constitutional order that seeks to minimize legislative, judicial and executive arbitrariness in order to protect the rule of law in a democratic society.376 One aspect of this institutional dialogue is the relationship between the judiciary and the administrative state, as it plays out in administrative law. 372 Hogg, supra note 2 at 36.5; Barak, supra note 70 at 465?467. For example, in Canada (Attorney General) v JTI-Macdonald Corp.,  2 SCR 610, the Court reviewed legislation restricting the advertising of tobacco products, which was designed to achieve the same purpose as an earlier Act that had been struck down by the Court for not satisfying the minimal impairment test. 373 See Hogg & Bushell, supra note 367; Peter W Hogg, Allison A Bushell Thornton & Wade K Wright, ?A Reply on Charter Dialogue Revisited? (2007) 45 Osgoode Hall LJ 193 at 194. 374 See Vriend, supra note 140; M v H, supra note 369; R v Mills, supra note 369; Bell ExpressVu, supra note 369; Sauv?, supra note 369. 375 See Lon L Fuller, The Morality of Law, Revised ed (New Haven: Yale U.P, 1969) at 192; Kent Roach, ?A Dialogue about Principle and a Principled Dialogue: Justice Iacobucci?s Substantive Approach to Dialogue? (2007) 57 U Toronto LJ 449 at 455. For a dialogic model of administrative discretion conceived through the metaphor of a dialogue between individuals and the state, with judicial review promoting a process of communication between the decision maker and the individual concerned, see Genevieve Cartier, ?Administrative Discretion and the Spirit of Legality: From Theory to Practice? (2009) 24 CJLS 313 at 321; Cartier, supra note 162 at 404?405. 376 Liston, supra note 160 at 18, 21, 75. Liston suggests that there are four dimensions of institutional dialogue that occur among participants in the Canadian constitutional order. First, horizontal dialogue occurs among co-equal branches of government: the legislature, the executive, and the judiciary. Second, horizontal dialogue also takes place among co-equal partners in the constitutional order: federal and provincial governments, the Crown, and Aboriginal peoples. Third, vertical dialogue occurs among superior and subordinate bodies in the constitutional order such as between the judiciary and the bureaucracy. Fourth, citizens and the state engage in vertical dialogue through a variety of institutional processes, including public law litigation. See also Kent Roach, ?Sharpening the Dialogue Debate: The Next Decade of Scholarship? (2007) 45 Osgoode Hall LJ 169 at 188?189; Genevieve Cartier, ?Administrative Discretion as Dialogue: A Response to John Willis (or: from Theology to Secularization)? (2005) 55 UTLJ 629. 73 220.127.116.11 Dialogue in administrative Law Historically, the courts? stance toward administrative agencies has been negative: to limit, reign in, supervise, oversee and constrain.377 Courts have struggled to find a standard of review that balances the underlying tension between the rule of law (requiring that state action be grounded in law) and respect for the foundational democratic principle of legislative supremacy.378 The Diceyan model of administrative state ordering informed the traditional approach to judicial review of administrative action, whereby the legislature is the proper source of the laws conferring authority on the administrative decision-makers, and the judicial role is to ensure administrative decision-makers remain within the limits of the law.379 However, this model no longer explains the judiciary?s dominant approach to review of administrative action.380 As outlined above (see Section 1.2.1), a new approach has emerged, characterized by a focus on respectful deference to administrative decision-makers? expertise.381 As Liston has put it, the relationship of courts to other branches ?aspires to a kind of respectful deference (where merited) characterized by an institutional dialogue about the appropriate use and control of discretion, rather than the older command-and-control relationship?.382 This characterization was picked up in Dor?, when the Court stated (quoting Liston): ?[i]ntegrating Charter values into the administrative approach, and recognizing the 377 Flood & Dolling, supra note 23 at 23. 378 As articulated in Dunsmuir, courts ?must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures?: Dunsmuir, supra note 10 at para 27. 379 See Liston, supra note 23 at 43?44, 49; Wildeman, supra note 23 at 326. 380 Wildeman, supra note 23 at 331. Some judges do, however, take a more formalist vision of the separation of powers: see, for example, Alberta Teachers? Association, supra note 43 at paras 90?104, Cromwell J. 381 The approach can be traced back to C.U.P.E. v N.B. Liquor Corporation,  2 SCR 227, which marked a significant turning point in the approach of courts to judicial review, and ?transformed the conceptual basis of substantive review through a reformulation of the institutional relationship between courts and the administrative state?: see Macklin, supra note 3 at 288. 382 Liston, supra note 365 at 100 (references omitted). 74 expertise of these decisionmakers, opens an ?institutional dialogue about the appropriate use and control of discretion, rather than the older command-and-control relationship??.383 The institutional dialogue approach views the judicial role in reviewing administrative decisions as part of a public justification project shared among the legislative, judicial and executive/administrative branches of government (rather than as judges patrolling the legal limits of administrative action).384 As outlined in Section 1.2.1, this model of constitutional ordering requires that all three branches of government participate in working out the legal norms governing the exercise of state power.385 This conception of the separation of powers suggests that the courts, the legislature, the executive, international actors and parties who challenge administrative decisions all have an important role to play in the determination of the values or principles considered fundamental to the social, political and legal order.386 ?Institutional dialogue? in administrative law encompasses these ideas in describing the relationship between the legislature, administrative agencies and the courts. A reviewing court concerned about dialogue will therefore demonstrate respect for the legitimacy and expertise of the administrative decision-maker (deference as respect); recognize that more than one reasonable interpretation or decision may exist; uphold the rule of law by ensuring that state action is justified in accordance with the law; and show an awareness of the ability of the other branches of government to take action in response to a judicial decision. 383 Dor?, supra note 11 at para 35. Quoting Liston, supra note 365 at 100. 384 Wildeman, supra note 23 at 325. See also Liston, supra note 160 at 16?17. 385 Dyzenhaus, supra note 46 at 487?489. Further, this model reflects an understanding of administrative decision-makers as able to contribute to the shared work of determining the values and policy objectives of administrative regimes: Wildeman, supra note 23 at 331. 386 Dyzenhaus, supra note 46 at 451, 453 and 501. See also Hogg, Thornton & Wright, supra note 47 at 30. 75 18.104.22.168.1 Respect for administrative decision-makers As outlined in Section 1.2.1, the concept of ?deference as respect? recognizes the expertise of the administrative decision-maker.387 As adopted when applying a reasonableness standard of review, the court avoids second-guessing administrative decision-makers with respect to the weight or priority they assign to competing factors of relevance to their decision.388 Administrative bodies are therefore viewed as legitimate entities with which to enter into a ?dialogue? and contribute to determining the meaning and scope of the fundamental values underlying the Charter.389 The Court has accepted that administrative tribunals should play a primary role in determining Charter issues falling within their jurisdiction. As outlined in Chapter 2, there has also been a general trend within administrative law affirming the power of administrative tribunals and respecting their decision-making.390 Thus, when applying a reasonableness standard, courts have been prepared to defer to agencies? interpretations ?rather than assume that the judiciary has a monopoly on the wisdom that is needed to elaborate on the legislature?s instructions?.391 22.214.171.124.2 Rejection of a judicial monopoly on interpretation Recognition by judges that there may be more than one reasonable decision or interpretation of a statutory provision, rather than the command model of the judiciary imposing the ?correct? outcome, is an important aspect of a dialogic relationship.392 The 387 See Dyzenhaus, supra note 48 at 286. See also David J Mullan, ?Establishing the Standard of Review: The Struggle for Complexity?? (2004) 17:1 Can J Admin L & Prac 59 at 93. 388 See Suresh, supra note 258 at para 37. 389 See Wildeman, supra note 23 at 331. 390 See Dor?, supra note 11 at para 48. This trend is seen in Dunsmuir, supra note 10; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12; Conway, supra note 319; Alberta Teachers? Association, supra note 43. See also Bredt & Krajewska, supra note 328 at 463. 391 Van Harten, Mullan & Heckman, supra note 161 at 32. 392 Dialogue theory in the constitutional law domain has been criticized for assuming ?a judicial monopoly on correct interpretation,? given that ?[g]enuine dialogue only exists when legislatures are recognized as legitimate interpreters of the constitution and have an effective means to assert that interpretation?: Christopher P Manfredi & James B Kelly, ?Six Degrees of Dialogue: A Response to Hogg and Bushell? (1999) 37 Osgoode Hall LJ 513 at 523?524. See also Rainer Knopff, ?How Democratic is the Charter? And Does it Matter?? (2003) 19 Sup Ct L 76 notion that there may be more than one reasonable interpretation of statutory language, and that there will often be no single right answer or decision is inherent in the notion of reasonableness review.393 The Court has also recognized the possibility that there may be more than one reasonable interpretation of the Charter,394 and that some administrative actors have jurisdiction to interpret the Charter and refuse to apply Charter-inconsistent legislation.395 Correctness review, on the other hand, does not allow for deference to the administrative decision maker?s reasoning and directs that the court determine the ?correct? decision.396 In conducting a reasonableness review, judges must therefore be careful not to apply a correctness standard by first deciding what they consider to be the answer and then checking to see whether the administrative actor?s answer coincides with that answer: the focus is on whether the decision is justified.397 126.96.36.199.3 Justification An important part of a dialogic vision of the rule of law is the idea of justification.398 As explained by McLachlin J (as she then was), the rule of law should be seen as an essential Rev 199 at 212. Hogg et al. respond that they do not assume a judicial monopoly on correct interpretation of the Charter but do assume is a judicial monopoly on final interpretation of the Charter. In their view, final authority to interpret the Charter rests properly with the judiciary and judicial interpretation of the Charter is authoritative: Hogg, Thornton & Wright, supra note 47 at 31. 393 See C.U.P.E. v N.B. Liquor Corporation, supra note 381 at 230, 237; Dunsmuir, supra note 10 at para 47; Law Society of New Brunswick v Ryan,  1 SCR 247 at para 51. In Smith v Alliance Pipeline Ltd., the Court rejected concerns over the possibility of multiple interpretations flowing from deference. Fish J noted that, even prior to Dunsmuir, the standard of reasonableness was based on the idea that multiple valid interpretations of a statutory provision were inevitable, and ought not to be disturbed unless the tribunal?s decision was not rationally supported: see Smith v Alliance Pipeline, supra note 52 at paras 38?39. 394 See, for example, R v Mills, supra note 369 at 712?713, 749, McLachlin and Iacobucci JJ; Khadr, supra note 65 at para 37. 395 See Conway, supra note 319 at paras 20, 77. 396 ?When applying the correctness standard, a reviewing court will not show deference to the decision maker?s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer?: Dunsmuir, supra note 10 at para 50. 397 David Dyzenhaus, ?Dignity in Administrative Law: Judicial Deference in a Culture of Justification? (2012) 17 Rev Const Stud 87 at 113. 398 David Dyzenhaus, ?Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review?? in C F Forsyth, ed, Judicial Review and the Constitution (Oxford; Portland, Or: Hart Pub, 2000) 141 at 171. See also Dunsmuir, supra note 10 at para 47. 77 attribute of decision-making in a democratic society, taking as its overarching principle ?a certain ethos of justification? under which an exercise of public power is only appropriate where it can be justified to citizens in terms of rationality and fairness.399 A key aspect of dialogue theory is therefore the concept of each institution (including the judiciary) justifying its decisions.400 This conception of the separation of powers envisions all three branches of government having an important role to play in the determination of fundamental values and principles.401 The possibility of dialogue will be enhanced if the court engages with the decision-maker?s reasons and identifies exactly where the court departs from the decision-maker. Such an approach enables the parties, the wider public and the decision-maker itself to evaluate whether the court?s conclusion is justifiable.402 188.8.131.52.4 Responsive communication While the rule of law is ultimately maintained because the courts have the last word on the reasonableness of the administrative decision,403 institutional dialogue is furthered through the ability of the other branches of government to take action in response to a judicial decision. Hogg et al. use dialogue to describe the process whereby a judicial decision is followed by a legislative sequel,404 which involves a responsive form of communicative action. In the absence of statutory authority, administrative decision-makers are not empowered to act on an interpretation of the Charter that conflicts with an interpretation 399 Beverley McLachlin, ?The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law? (1998) 12 Can J Admin L & Prac 171 at 178. The ethos of justification ?re-constructs the relationship between the courts and the administrative state, transforming it from a ?policing one? based on mutual suspicion, distrust and antagonism to a more co-operative one based on mutual or reciprocal recognition?: Liston, supra note 160 at 298. 400 See Hogg, supra note 2 at 36.5; Barak, supra note 70 at 465?467; Kent Roach, ?Dialogic Judicial Review and its Critics? (2004) 23 Sup Ct L Rev 49 at 69. Judges are obliged to see themselves as one of the branches in a democratic legal order together with the executive and the legislature: Dyzenhaus, supra note 48 at 305. 401 Dyzenhaus, supra note 46 at 487?489 and 501. See also Wildeman, supra note 23 at 325; Hogg, Thornton & Wright, supra note 47 at 30. 402 Wildeman, supra note 23 at 341. 403 Dunsmuir, supra note 10 at para 30. 404 Hogg, Thornton & Wright, supra note 47 at 40. 78 provided by the courts. However, although administrative actors are bound to respect judicial decisions, the legislature is able (if it disagrees with the judicial interpretation) to respond through amending the laws governing the administrative body.405 Furthermore, a judicial ruling on an administrative decision will usually be limited in application to that decision, rather than changing a law of general application. An administrative law approach will therefore generally not constrain the executive?s or legislative?s options to respond to a judicial decision as much as a constitutional law approach (as the ruling will only apply to a particular factual scenario). 184.108.40.206 Institutional dialogue and Dor? In Dor?, the Court demonstrated a commitment to the legitimate institutional role of administrative bodies and their decisions. The Court in Dor? suggested that the administrative law approach recognizes this legitimacy that the Court has ?given? to administrative decision-making.406 The Court explained that 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?.407 The Court recognized that an administrative decision-maker ?exercising a discretionary power under his or her home statute, has, by virtue of expertise and specialization, particular familiarity with the competing considerations at play in weighing Charter values?.408 This 405 The legislature may, however, need to utilize s. 33 of the Charter: see Ibid at 33?34. Hogg et al. point out that if Parliament or the legislature could override a court?s interpretation of the Charter by simply enacting ordinary legislation reflecting a different interpretation, s. 33 of the Charter would be redundant. Note, however, Waldron?s critique of the legislature?s use of the s. 33 override when it disagrees about the interpretation of a particular Charter right: Jeremy Waldron, ?Some Models of Dialogue between Judges and Legislators? (2004) 23 Sup Ct L Rev 7 at 7, 34?39. 406 Dor?, supra note 11 at para 35. 407 Ibid at para 30. 408 Ibid at para 47. The Court referenced Professor Evans, who wrote following Slaight: ?reasons for judicial restraint in reviewing agencies? decisions on matters in which their expertise is relevant do not lose their cogency simply because the question in issue also has a constitutional dimension?: Evans, supra note 331 at 81. 79 recognition of the legitimacy of administrative bodies? interpretation of the law reflects a move away from a strict understanding of the separation of powers, as it implies it is legitimate for the executive to exercise judicial-like powers.409 3.3.2 Discretionary decisions and ?law? In Dor?, the Court suggested that Charter analysis is ?poorly suited? to review of discretionary decisions. This section examines the issues the Court sees with applying the Oakes test to administrative decisions, including the difficulties arising from placing the burden of justification on administrative bodies and from the s. 1 ?prescribed by law? requirement in the context of administrative decisions. 220.127.116.11 Applying the Oakes test to discretionary decisions The Court asserts that difficulties arise with conceptualizing and applying the Oakes test to administrative decisions. In particular, the Court suggests that, when a discretionary decision is made under a provision or statutory scheme whose constitutionality is not impugned, ?it is conceptually difficult to see what the ?pressing and substantial? objective of a decision is, or who would have the burden of defining and defending it?.410 According to the Oakes test, the onus of justifying the limitation of a Charter right rests on the party seeking to have that limitation upheld.411 It would appear that the Court in Dor? was most concerned about imposing on administrative agencies the burden of defending the objectives of their decisions. The Court suggested that administrative decision-makers, when exercising discretionary powers, are in fact similar to the courts, so the approach the Court 409 Cartier, supra note 162 at 395. 410 Dor?, supra note 11 at para 38. 411 Oakes, supra note 8 at 138. 80 takes in Dor? is similar to the approach taken to assess whether the common law is consistent with the Charter. As the Court put it:412 This Court has already recognized the difficulty of applying the Oakes framework beyond the context of reviewing a law or other rule of general application. This has been the case in applying Charter values to the common law ? The common law approach (set out more fully below in Section 3.4.4) requires that, rather than using the Oakes test as the vehicle for assessing whether Charter values are sufficiently taken into account, the Court merely ensures that the common law is developed in a manner consistent with Charter values. Underlying the approach taken in Dor? appears to be Abella J?s suggestion in Multani that administrative bodies ?like the courts ? cannot be treated as parties with an interest in a dispute?.413 In light of administrative bodies? (supposed) independence from government,414 she predicted problems with placing the burden of proof onto administrative bodies and requiring an administrative body with quasi-judicial functions to adduce evidence to justify its decision under s. 1.415 The Court?s unease with similar issues when applying the Charter to the common law is explored further below (see Section 3.4.4). 412 Dor?, supra note 11 at para 39. 413 Multani, supra note 7 at para 123. 414 I say ?supposed? independence in light of the concerns that administrative decision-makers lack the independence of the courts and that an administrative body?s independence may be undermined on the whim of the legislature: see, e.g., Ocean Port Hotel Ltd. v British Columbia (General Manager, Liquor Control and Licensing Branch),  2 SCR 781. In that case, the Court refused to find a constitutional basis for a guarantee of adjudicative independence for tribunals [in the Preamble to the Constitution Act, 1867]. Although the fact that an individual?s Charter right has been limited by a decision should engage a higher level of procedural fairness, the Court has rejected that there is any constitutional basis for a guarantee of administrative independence. Therefore the degree of independence required of a particular administrative decision-maker is determined by its enabling statute, meaning that the legislature can effectively determine the level of independence the decision-maker has from other parts of government or policy areas. Some tension over the appropriate institutional role of administrative bodies therefore remains, particularly in relation to the issues raised by Lamer CJC in Cooper: see Cooper, supra note 216 at para 13. See further S Ronald Ellis, Unjust by Design: Canada?s Administrative Justice System, Law and Society (Vancouver: UBC Press, 2013). 415 Multani, supra note 7 at para 132. 81 18.104.22.168 Prescribed by law Section 1 of the Charter requires that government action limiting a protected right or freedom be ?prescribed by law? in order to be justified as reasonable in a free and democratic society. If a limitation of rights is not legally authorized, the limit is not prescribed by law (and a Charter violation is established, hence the court does not proceed to the Oakes test). In previous cases, the Court at times took the approach that a discretionary decision will be prescribed by law for the purpose of s. 1 when the discretionary decision is statutorily authorized.416 However, in other cases the Court held that discretionary decisions are, by definition, never prescribed by law.417 In Dor?, the Court described the difficulties arising from the ?prescribed by law? requirement in the context of administrative decisions:418 The more flexible administrative approach to balancing Charter values is also more consistent with the nature of discretionary decision-making. Some of the aspects of the Oakes test are, in any event, poorly suited to the review of discretionary decisions, whether of judges or administrative decision-makers. For instance, the requirement under s. 1 that a limit be ?prescribed by law? has been held by this Court to apply to norms where ?their adoption is authorized by statute, they are binding rules of general application, and they are sufficiently accessible and precise to those to whom they apply? [Vancouver Transit at para 53]. In Vancouver Transit, the Court engaged in an extensive discussion of the case law on the ?prescribed by law? requirement, and concluded that the challenge in that case was directed at law rather than at the transit authorities? decisions, the ?laws? being the transit authorities? advertising polices.419 The Court distinguished between policies that are ?legislative in nature? (such as municipal by-laws or a law society?s rules), and those that are ?administrative in nature? (meaning ?focussed on ?indoor? management ? meant for internal use [and] 416 Slaight, supra note 7; Ross, supra note 7; Multani, supra note 7 at para 22. 417 Trinity Western, supra note 9; Chamberlain, supra note 9; Multani, supra note 7 at paras 112?125, Deschamps and Abella JJ. 418 Dor?, supra note 11 at para 37. 419 Vancouver Transit, supra note 7 at paras 50?73. 82 express statutory authority is not required to make them?).420 The Court looked to the statutory delegation of power that allowed the transit authority to adopt binding rules, and held that:421 [W]here a government policy is authorized by statute and sets out a general norm or standard that is meant to be binding and is sufficiently accessible and precise, the policy is legislative in nature and constitutes a limit that is ?prescribed by law?. Conversely, a policy that is administrative in nature (that is, a policy that is adopted pursuant to the administrator?s discretion, without express statutory authority) does not fall within the definition, because it is not intended to be a legal basis for government action.422 This distinction between laws and discretionary decisions was a primary reason for Abella and Deschamps JJ?s dissent in Multani, where they argued that an administrative analysis should be conducted because the Court was assessing an administrative decision rather than a rule or ?norm of general application?.423 Abella and Deschamps JJ argued that the expression ?law? should not include the decisions of administrative bodies.424 They suggested that administrative decisions should not be included in the concept of ?law? because the expression ?law? should be limited to rules of general application.425 In their view, an administrative decision is not a law or regulation but rather ?the result of a process provided for by statute and by the principles of administrative law in a given case? and ?[e]stablishing a norm and resolving a dispute are not usually considered equivalent processes?.426 On this view, discretionary decisions are seen as fundamentally different from ?laws? or ?norms of general application?, such that discretionary decisions are not subject to s. 1 of the Charter. Discretionary decisions do not have the necessary degree of general applicability, 420 Ibid at paras 58?63. 421 Ibid at para 64. 422 Ibid at para 63. 423 Multani, supra note 7 at para 103 per Deschamps and Abella JJ. 424 Ibid at para 125. 425 Ibid at para 119. 426 Ibid at para 112. 83 accessibility and precision to qualify as laws. It seems that this reasoning won the day in Dor?. However, in his concurring opinion in Multani, LeBel J raised concerns about the ?norm-decision? duality preferred by Abella and Deschamps JJ, which he suggested underestimates the problems that arise in applying the classifications and ?entails a risk of narrowing the scope of constitutional review of compliance with the Canadian Charter and its underlying values?.427 Given that the Court in Dor? did not explicitly adopt Abella and Deschamps JJ?s distinction between laws of general application and discretionary decisions, we may speculate that there remains some disquiet on the Court about this distinction, and about the relationship between discretionary decisions and the rule of law concerns underlying the s. 1 ?prescribed by law? requirement. 3.3.3 Reasonableness standard of review This section will explore the Court?s rationale for a reasonableness standard of review in Dor?, in particular the reasons for deference to discretionary administrative decisions and the concept of deference in Charter and administrative law review. 22.214.171.124 Reasons for deference In Dunsmuir, the Court held that 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.428 In Dor?, the Court suggested that deference to the Disciplinary Council?s decision was appropriate, following the pre-Dunsmuir decision of Law Society of New Brunswick v Ryan:429 Although there is a statutory appeal from decisions of the Discipline Committee, the expertise of the Committee, the purpose of its enabling statute, and the nature of the 427 Ibid at para 151. 428 Dunsmuir, supra note 10 at para 49. 429 Law Society of New Brunswick v Ryan, supra note 393 at para 42. See Dor?, supra note 11 at para 44. 84 question in dispute all suggest a more deferential standard of review than correctness. These factors suggest that the legislator intended that the Discipline Committee of the selfregulating Law Society should be a specialized body with the primary responsibility to promote the objectives of the Act by overseeing professional discipline and, where necessary, selecting appropriate sanctions. The Court concluded that the fact that Charter interests are implicated ?does not argue for a different standard?,430 and deference is justified on the basis of the decision-maker?s expertise and its proximity to the facts of the case.431 126.96.36.199.1 Expertise The Court noted that the starting point is the expertise of the administrative decision-maker in connection with its home statute, which means that it has a ?particular familiarity with the competing considerations at play in weighing Charter values? when exercising a discretionary power under that home statute by virtue of expertise and specialization.432 The Court cited David Mullan?s explanation that a policy of deference ?recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime?.433 188.8.131.52.2 Knowledge of the facts The Court also pointed to ?the increasing recognition by this Court 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?.434 The Court once again relied on the distinction 430 Dor?, supra note 11 at para 45. 431 Ibid at para 54. 432 Ibid at paras 46?47. 433 Mullan, supra note 387 at 93. For further exploration of the rationale for deferring to the expertise of administrative decision-makers, see above, Section 1.2.1. 434 Dor?, supra note 11 at para 48. Referring to Mooring, supra note 214 at para 64, Major J, dissenting; Conway, supra note 319 at paras 79?80. 85 between norms of general application and discretionary decisions as a reason for an approach that differs from the Charter approach:435 When Charter values are applied to an individual administrative decision, they are being applied in relation to a particular set of facts. Dunsmuir tells us this should attract deference ... Therefore, even where Charter values are involved, the administrative decision-maker ?will generally be in the best position to consider the impact of the relevant Charter values on the specific facts of the case?.436 The rationale for the idea that deference is appropriate when Charter values are applied in relation to a particular set of facts is a recognition that the initial decision-maker will generally have a greater appreciation of the facts of the individual case, given that he or she will have examined the evidence firsthand and observed any witness testimony.437 Appeal courts take a similar approach to review judicial decisions of first instance on factual issues, which will only be interfered with where the appellate court can identify a ?palpable and overriding error? or where the finding was ?clearly wrong?.438 184.108.40.206 Deference when assessing reasonableness and proportionality In Dor?, the Abella J (for the Court) asserts:439 I see nothing in the administrative law approach which is inherently inconsistent with the strong Charter protection ? meaning its guarantees and values ? we expect from an Oakes analysis. The notion of deference in administrative law should no more be a barrier to effective Charter protection than the margin of appreciation is when we apply a full s. 1 analysis. 435 Dor?, supra note 11 at para 36. Citing Dunsmuir, supra note 10 at para 53; Suresh, supra note 258 at para 39. 436 Dor?, supra note 11 at para 54. 437 Baker, supra note 9 at para 61; Suresh, supra note 258 at para 31; Dr. Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at paras 19, 33?34. 438 Stein et al. v ?Kathy K? et al. (The Ship),  2 SCR 802 at 806 and 808. See also H.L. v Canada (Attorney General), 2005 SCC 25 at paras 55?57. 439 Dor?, supra note 11 at para 5. 86 This statement implies that the nature of the deference operating when courts review rights-infringing administrative decisions within an administrative law framework should not differ significantly from the Charter approach. The following sections explore the nature of deference in conducting proportionality analysis under the Oakes test and in conducting reasonableness review, to better understand the Court?s proposition that there is ?conceptual harmony? between the Oakes framework and reasonableness review, ?since both contemplate giving a ?margin of appreciation?, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives?.440 220.127.116.11.1 Deference in applying the Oakes test Judicial review under the Charter requires judges to determine the legal validity of actions by the other branches of the state. Given that the judiciary is not democratically accountable,441 the legitimacy of the courts second-guessing the value judgments of democratic institutions has been called into question.442 The Court has responded to this legitimacy dilemma by adopting a deferential approach in some cases, emphasizing that their role to ?is not to second-guess the wisdom of policy choices made by our legislators?.443 Reasons for this deference by courts include the view that political forms of accountability are more appropriate, that courts are not institutionally competent to review policy choices and/or lack subject area expertise or access to relevant data, and that the judicial review procedure is ill-suited to an appropriate evaluation of the competing considerations that bear upon 440 Ibid at para 57. 441 Robert Alexy, ?Balancing, Constitutional Review, and Representation? (2005) 3 Int?l J Const L 572 at 578. 442 Weinrib points out, however, that although rights protection is clearly anti-majoritarian in some respects, it should not be labelled anti-democratic: Lorraine E Weinrib, ?This New Democracy...: Justice Iacobucci and Canada?s Rights Revolution? (2007) 57 UTLJ 399 at 413. Judicial review can be seen as intensifying accountability and broadening representation, and thus legitimating the democratic, majoritarian process: Weinrib, supra note 98 at 174. Judicial review may also be viewed as enhancing citizen self-government: Stephen Gardbaum, ?Limiting Constitutional Rights? (2006) 54 UCLA L Rev 789 at 817. 443 Prostitution Reference, supra note 192 at 1119, Lamer J (as he then was). 87 discretionary choices.444 The Court has also expressed concern that a non-deferential approach may result in legislative measures protecting vulnerable groups being struck down.445 The Court has held that deference to the legislature?s judgment about the need for, or effectiveness of, a particular limit on a Charter right is more appropriate in some contexts than in others.446 Thus greater deference is accorded where the law is concerned with the competing rights between different sectors of society than if it is ?a contest between the individual and the state?.447 The courts also accord greater deference to legislative choice where the measure is designed to protect a vulnerable group,448 concerns a complex social issue,449 deals with the allocation of scarce resources,450 or seeks to balance the interests of competing groups.451 In these cases, the Court has stated that the Oakes test should be applied flexibly, and ?not formally or mechanistically?.452 Hence, a complex regulatory response to a social problem will be assessed differently than criminal legislation that directly threatens a person?s liberty (with the courts showing little or no deference in criminal justice cases).453 444 David J Mullan, ?Proportionality ? A Proportionate Response to an Emerging Crisis in Canadian Judicial Review Law?? (2010) NZL Rev 233 at 238. 445 R v Edwards Books and Art Ltd.,  2 SCR 713; Edmonton Journal v Alberta (Attorney General),  2 SCR 1326 at 772?774. 446 R v St-Onge Lamoureux, 2012 SCC 57 at para 39. See also Constitutional Law Group, supra note 114 at 781. See also Irwin Toy, supra note 189 at 994; Constitutional Law Group, supra note 114 at 781?785; Choudhry, supra note 106; Hogg, supra note 2 at 38.11; Weinrib, supra note 85 at 91. 447 RJR-MacDonald, supra note 77 at 331. 448 Irwin Toy, supra note 189 at 993?994. See also Thomson Newspapers Co. v Canada (Attorney General),  1 SCR 877 at 942?943; R v Sharpe,  1 SCR 45 at para 133, L?Heureux?Dub?, Gonthier and Bastarache JJ. 449 Hutterian Brethren, supra note 8 at para 53; JTI-Macdonald, supra note 372 at para 43. 450 Newfoundland (Treasury Board) v N.A.P.E.,  3 SCR 381. Governments ?must be afforded wide latitude to determine the proper distribution of resources in society?: Egan v Canada,  2 SCR 513 at para 104. Further, ?financial considerations are relevant to determining the standard of deference for the test of minimal impairment when reviewing legislation which is enacted for a purpose which is not financial?: Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I. [Ref re Remuneration of Judges],  3 SCR 3 at para 283. 451 Irwin Toy, supra note 189 at 993?994. In the words of Lon Fuller, these types of cases deal with classic ?polycentric? matters which are ill-suited to resolution in the bipolar adjudicative arena: see Lon L Fuller, ?The Forms and Limits of Adjudication? (1978) 92 Harv L Rev 353. 452 Eldridge, supra note 7 at para 85; Keegstra, supra note 135 at 737; Irwin Toy, supra note 189 at 999?1000; RJR-MacDonald, supra note 77 at para 63, La Forest J; and at paras 127?138, McLachlin J (as she then was). 453 Hutterian Brethren, supra note 8 at paras 35, 37. 88 However, there is significant disagreement among members of the Court about when the judiciary should defer to legislative judgment.454 The concept of deference generally arises within the margin of appreciation that the Oakes framework acknowledges, particularly in the Court?s discussion of the minimal impairment limb of the Oakes test.455 However, the Court has applied the notion of deference at almost every stage of the Oakes test.456 The Court has held that deference may be appropriate in assessing whether the requirement of rational connection is made out,457 whether there are less harmful means of achieving the legislative goal,458 and whether the measure has a disproportionate effect.459 While the Court has generally discussed deference when considering the minimal impairment step, some members of the Court have debated whether deference is appropriate in the earlier steps of the Oakes test.460 454 Constitutional Law Group, supra note 114 at 780. For example, some members of the Court have pointed out that the ?fact that the matter is complex, contentious or laden with social values? does not mean that the judiciary can abdicate the responsibility vested in them by the Constitution to review legislation for Charter compliance?: Chaoulli, supra note 100 at para 107, McLachlin CJC and Major J. 455 Ontario (Attorney General) v Fraser, 2011 SCC 20 at para 81; Hogg, supra note 2 at 38.11. 456 Bredt, supra note 87 at 63. Deference does not play a role in determining whether the objective of the measure implemented by the legislature is sufficiently important: this is an important step for ensuring the constitutional status of the right is respected and, as shown above, deficiencies in the legislative objective will impact upon the later Oakes test steps: see further Barak, supra note 70 at 403?405. 457 JTI-Macdonald, supra note 372 at para 41. The Court held that, in cases dealing with complex social problems such as tobacco consumption, and where there is room for debate about what will work or the outcome is not be scientifically measurable, Parliament?s decision as to what means to adopt should be accorded considerable deference. 458 Hutterian Brethren, supra note 8 at para 53; JTI-Macdonald, supra note 372 at para 43. 459 Hutterian Brethren, supra note 8 at para 85. 460 For example, McLachlin CJC has argued that the obligation of the government to demonstrate a pressing and substantial objective, rational connection, and minimal impairment should not be influenced by the court?s view that the restricted expression is of little value, and only at the final stage of the Oakes proportionality analysis is the value of the restricted expression relevant: R v Lucas,  1 SCR 439 at para 116?119, McLachlin J (as she then was), dissenting. See also Hutterian Brethren, supra note 8 at para 85. 89 18.104.22.168.1.1 Importance of context Soon after the Oakes decision, the Court called for a more contextually sensitive balancing of competing interests under s. 1.461 Thus the Court has held that a particular right or freedom may have a different value depending on the context:462 The contextual approach attempts to bring into sharp relief the aspect of the right or freedom that is truly at stake in the case as well as the relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values under s. 1. The Court has indicated in a number of cases that the application of the Oakes test requires close attention to the context in which the impugned legislation operates.463 Thus, a less-significant competing interest may support restriction of a less-valuable form of the protected right or freedom.464 The Court has stated that context is ?the indispensable handmaiden? to the proper characterization of each step of the Oakes test.465 Sujit Choudhry identifies the collapse of the Court?s approach of drawing categorical distinctions to identify cases in which it should defer to the legislature under s. 1 of the Charter, and the Court?s tailoring of the analysis to the unique context of each case, as the 461 Edmonton Journal, supra note 445; Irwin Toy, supra note 189. See also Constitutional Law Group, supra note 114 at 780. 462 Edmonton Journal, supra note 445 at 1355?1356, Wilson J. 463 Ross, supra note 7 at para 78; Thomson Newspapers, supra note 448 at 939, Bastarache J. 464 Thomson Newspapers, supra note 448. The Court has held the level of protection to which expression may be entitled will vary with the nature of the expression: the further that expression is from the core values of the right the greater will be the ability to justify the state's restrictive action: R v Lucas, supra note 460 at 459. Thus pornography, commercial expression, hate promotion, soliciting for the purposes of prostitution, and defamation are held to be less directly connected to the values underlying the freedom than political or artistic expression, and are therefore subject to a less demanding standard of justification under the Oakes test: see Moon, supra note 97 at 347. 465 Thomson Newspapers, supra note 448 at 939. Bastarache J held that since the context of the impugned provision is also important in determining the type of proof which a court can demand of the legislator to justify its measures under s. 1, contextual factors, including the relative value of the restricted expression, affects the entirety of the s. 1 analysis: Ibid at 939?943. The Court has also held that ?the contextual approach requires that regulatory and criminal offences be treated differently for the purposes of Charter review?, such that regulatory offences are subject to a more deferential review: see R v Wholesale Travel Group Ltd.,  3 SCR 154 at 227. See also Ontario v Canadian Pacific Ltd.,  2 SCR 1031 at para 58. 90 ?dominant legacy? of Oakes.466 Choudhry posits that recent cases (since 1998) highlighted that these categorical distinctions were untenable, which has resulted in ?the death of the categorical approach to section 1? and the rise of ?a highly context-driven inquiry?.467 While a contextual approach does not necessarily involve judicial deference to legislative judgment,468 the flexibility accorded when the Court takes a contextual approach will often lead to deference. The Court recently clarified that the contextual factors should be directed at determining to what extent the case is one ?where the evidence will rightly consist of ?approximations and extrapolations? as opposed to more traditional forms of social science proof, and therefore to what extent arguments based on logic and reason will be accepted as a foundational part of the case.?469 Thus the context is also relevant in considering the evidence required to prove the elements of the Oakes test. 22.214.171.124.1.2 Standard of justification With many rights-limiting measures, there is some uncertainty about the likelihood of the measure actually achieving the specified objective, or whether the measure chosen will fulfill the objective better than other possible measures. In Oakes, the Court held that ?cogent and persuasive? evidence was required to prove the elements of the s. 1 inquiry.470 However, the Court has recognized in subsequent cases that this standard of proof is unworkable in many cases, and that government policies must often be established based on imperfect or inconclusive evidence.471 In cases in which there is conflicting or inconclusive evidence, the 466 Choudhry, supra note 106 at 503, 520?521. 467 Ibid at 521. 468 Moon, supra note 97 at 359. 469 R v Bryan,  1 SCR 527 at para 29. Citing Choudhry, supra note 106 at 524. 470 Oakes, supra note 8 at 138. 471 In Hutterian, McLachlin CJC stated that if ?legislation designed to further the public good were required to await proof positive that the benefits would in fact be realized, few laws would be passed and the public interest would suffer?: Hutterian Brethren, supra note 8 at para 85, McLachlin CJC. 91 question therefore becomes whether the government has a ?reasonable basis? for concluding that each element of the Oakes test is met.472 This standard is understood as expecting something less of governments than definitive, scientific proof.473 However, an absolute lack of evidence is unacceptable; there must be some factual basis for the rights-limiting measure.474 For example, in Canada v PHS, the Court held that the Minister?s decision was not justifiable because he had not taken into account the evidence supporting a finding that the safe injection site did more good than harm, so in fact furthered the statutory objectives.475 In some cases, where the evidence is ambiguous, the Court has accepted ?experience and common sense?476 or ?reason or logic?477 to bridge the evidential gap. The Court recently explained that this approach recognizes that traditional forms of evidence (or ideas about their sufficiency) may be unavailable in a given case and that to require such evidence in those circumstances would be inappropriate.478 The Court therefore lowers the standard of justification required under the Oakes test in some cases, in a manner that looks a lot like judicial deference.479 472 Irwin Toy, supra note 189 at 994. In Irwin Toy, the social science evidence was inconclusive but Court deferred to legislative judgment of the evidence. 473 As La Forest J wrote in his dissenting judgment in RJR-MacDonald, to require governments to bear the risk of empirical uncertainty ?could have the effect of virtually paralyzing the operation of government?: RJR-MacDonald, supra note 77 at para 67. 474 Choudhry, supra note 106 at 525. 475 See Canada v PHS, supra note 105 at para 131. 476 R v Sharpe, supra note 448 at para 94; R v Butler,  1 SCR 452. 477 RJR-MacDonald, supra note 77 at para 154; Harper v Canada (Attorney General),  1 SCR 827. In Harper, the majority acknowledged that both the alleged harm (to freedom of expression caused by legislative limits on third party spending on advertising in the course of a federal election campaign) and the efficacy of legislative responses to the harm were ?difficult, if not impossible, to measure scientifically? but reasoned that the harm nonetheless existed and the cure was effective: Ibid at para 79. In dissent, McLachlin CJC, Major J and Binnie J argued that, in the absence of evidence, the alleged dangers were entirely hypothetical, ?unproven and speculative?, and that the legislation was ?an overreaction to a non-existent problem?: Ibid at paras 34, 41. 478 Bryan, supra note 469 at para 29. This approach may be contrasted with the approach in Germany, where the courts have developed a scale of scrutiny that ranges from whether the legislature?s prognostications are evidently wrong to a reasonableness test to strict scrutiny, depending on the nature of the policy area, the possibility of basing the decision on reliable facts, and the importance of the constitutionally protected goods or interests at stake: see Grimm, supra note 137 at 391. 479 Constitutional Law Group, supra note 114 at 786. Choudhry suggests that the Oakes approach to interpreting s. 1 has ?unwittingly created a major institutional dilemma for the Court, given the practical reality that public policy is often made on the basis of incomplete knowledge?: Choudhry, supra note 106 at 524. 92 126.96.36.199.2 Deference in administrative law 188.8.131.52.2.1 Reasonableness review The Court has recognized that, when conducting a review for reasonableness, courts should be concerned with ?whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law?.480 As the Court said in Dunsmuir, ?reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process?.481 Administrative decision-makers are accorded ?a margin of appreciation within the range of acceptable and rational solutions?.482 In applying the reasonableness standard, the reviewing court therefore pays attention to the administrative decision-maker?s justification and reasoning, and the decision will stand unless it cannot be rationally supported by the relevant legislation or the evidence.483 184.108.40.206.2.2 Importance of context The notion of ?reasonableness? has many forms in different contexts, even within administrative law.484 Reasonableness ?is a single standard that takes its colour from the context?.485 As McLachlin CJC noted in Catalyst Paper, ?reasonableness must be assessed in the context of the particular type of decision making involved and all relevant factors. It is an essentially contextual inquiry?.486 The relevant contextual factors can include the subject matter of the decision, the nature of the decision maker (which may include labour arbitrator, Minister, school board, immigration officer, or police board), the type of body (including 480 Dunsmuir, supra note 10 at para 47. 481 Ibid. 482 Ibid. 483 See Ibid at para 35. See also David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality, 2d ed (Oxford; New York: University of Oxford, 2010). 484 See Barak, supra note 70 at 374; Michal Bobek, ?Reasonableness in Administrative Law: A Comparative Reflection on Functional Equivalence? in Reasonableness and Law (New York: Springer, 2009) 294. 485 Khosa, supra note 390 at para 59. 486 Catalyst Paper Corp. v North Cowichan (District), 2012 SCC 2 at para 18. 93 tribunals, inquiries, municipal councils, licensing agencies, disciplinary bodies), the statutory framework (including the breadth of any grant of discretion), the similarity to courts (as an institution or in mode of decision-making) or proximity to the legislature, and the type of person affected (whether individual or corporate body, vulnerable or powerful). For example, in Catalyst Paper, the Court took into account the fact that a municipality passing bylaws involves ?an array of social, economic, political and other non-legal considerations?, that the nature of decision-making is legislative rather than adjudicative or quasi-judicial in nature, and that municipalities are democratic institutions.487 Taking into account these contextual factors, the Court concluded that ?reasonableness means courts must respect the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable?, and a deferential approach was therefore appropriate. 220.127.116.11.2.3 Justification through reasons Historically, there was no duty for administrative decision-makers to provide reasons.488 However, in Baker, the Court held that the reasons for a decision are required to be provided in certain circumstances, including if a particular decision has ?important significance for the individual?.489 The purpose of providing reasons is to allow the individual to understand why the decision was made and to allow the reviewing court to assess the validity of the decision.490 Judicial attention to reasons also demonstrates respectful deference and constrains 487 Ibid at para 19. 488 Grant Huscroft, ?From Natural Justice to Fairness: Thresholds, Content, and the Role of Judicial Review? in Lorne Sossin & Colleen M Flood, eds, Administrative Law in Context, 2d ed (Toronto: Emond Montgomery Publications, 2013) 147 at 177. 489 See Baker, supra note 9 at para 43. While the requirement was framed as a procedural fairness requirement, the Court has clarified that procedural fairness is fulfilled by the provision of any reasons whereas analysis of the adequacy of the reasons should be made within the reasonableness analysis: Newfoundland Nurses, supra note 49 at paras 21?22. Reasons are still not required in all cases: see, for example, Canada (Attorney General) v Mavi, 2011 SCC 30. 490 Lake, supra note 9 at para 46. 94 the ability to re-weigh the factors leading to the decision.491 As the Court stated in Alberta Teachers,492 [D]eference under the reasonableness standard is best given effect when administrative decision makers provide intelligible and transparent justification for their decisions, and when courts ground their review of the decision in the reasons provided. Reason-giving by the administrative decision-maker thus acts as a rule of law constraint on administrative discretion and complements a democratic, justificatory culture.493 While a failure to provide any reasons will constitute a breach of the duty of fairness, the reviewing court does not assess the adequacy of the decision-maker?s reasons separately from the reasonableness of its ultimate decision.494 While reasons may vary in length and comprehensiveness (reflecting the reality of administrative decision-making), gaps in reasoning may be evidence of failure to consider a factor of mandatory relevance.495 There must be a ?line of analysis? within the reasons that could reasonably lead the decision-maker from the evidence before it to the conclusion at which it arrived.496 In spite of this, the courts may look beyond the reasons offered to those that could be offered in support of the decision,497 but not to such an extent as to reformulate the initial decision-maker?s reasons in order to find the decision reasonable.498 Reasons are not, however, always required. For example, formal reasons are not required of democratic institutions engaging in a democratic process (such as municipal 491 Liston, supra note 23 at 76. 492 Alberta Teachers? Association, supra note 43 at para 54. 493 Liston, supra note 160 at 242. Deference as respect involves of a model of review in which well-justified reasons will compel respect from the courts: Ibid at 298. 494 Newfoundland Nurses, supra note 49 at paras 14?15. 495 Wildeman, supra note 23 at 356. 496 Law Society of New Brunswick v Ryan, supra note 393 at para 55; Dunsmuir, supra note 10 at para 47. 497 Newfoundland Nurses, supra note 49 at para 12; Alberta Teachers? Association, supra note 43 at paras 22?28, 54. 498 Alberta Teachers? Association, supra note 43 at para 54. 95 councils passing bylaws) but reasons can be deduced from the debate, deliberations and the statements of policy that give rise to the bylaw.499 18.104.22.168.3 Differences in the nature of deference The primary potential difference between a traditional administrative/ ?reasonableness? law approach and a Charter/Oakes test approach therefore appears to be the level of justification required by the rights-infringer or, in other words, the level of scrutiny to which the court subjects the reasons for the decision. Neither approach means that the reviewing court steps into the shoes of the initial decision-maker. In the case of proportionality review under the Charter, however, the level of deference shown by the court varies according to the subject matter or nature of the legislation in issue, and is generally considered when assessing the minimal impairment and ultimate balancing steps. In some cases, very little or no deference will be shown and the court will engage in its own assessment of the evidence and arguments.500 Deference when undertaking a reasonableness review, on the other hand, is characterized by a respectful treatment of the initial decision-maker?s reasoning and is accorded when the decision demonstrates justification, transparency, and intelligibility. The level of justification required by the court when conducting a review for reasonableness, however, will depend on whether justificatory reasons are required of the administrative decision-maker and the level of scrutiny this justification is subjected to. As explored below, the level of scrutiny required under the Dor? approach is ambiguous. 3.3.4 Revised relationship between administrative law and the Charter As noted above, the Court in Dor? states ?we see a completely revised relationship between the Charter, the courts, and administrative law than the one first encountered in 499 Catalyst Paper, supra note 486 at paras 29?33. See also Canada (Attorney General) v Mavi, supra note 489. 500 See, for example, Multani, supra note 7 at paras 50?51. See also the discussion in Irwin Toy regarding the differences between criminal justice and social/economic policy cases: Irwin Toy, supra note 189 at 994. 96 Slaight?.501 So what has changed in this relationship since Slaight? The Court does not explain how this relationship has changed. However, a review of recent cases dealing with administrative bodies and the Charter, as well as the reasons for preferring the Dor? approach as outlined in the previous sections, does shed some light on how the Court conceives of this ?revised relationship? between administrative law and the Charter. Firstly, and importantly, there has been a general shift within administrative law toward affirming the power of administrative agencies and respecting their decision-making. Since the 2008 case of Dunsmuir, the Court has applied a presumption of reasonableness review where administrative bodies are interpreting their enabling statutes, except in certain defined cases. The Court also recognizes that the administrative body will generally be in the best position to consider the application of the law to the specific facts of the case. The Court emphasized in Dor? that administrative decisions are entitled to a measure of deference so long as the decision falls within a range of possible, acceptable outcomes.502 This recognition of the legitimacy of administrative bodies? interpretation and application of the law reflects a move away from a strict understanding of the separation of powers, as it suggests that it is legitimate for the executive to exercise judicial-like powers of statutory interpretation and application. Secondly, the Court views discretionary decisions as fundamentally different from ?laws? or ?norms of general application? such that discretionary decisions, like the common law, are not subject to s. 1 of the Charter. The Court suggests that the nature of discretionary decision-making makes it more suited to administrative law review and that some aspects of 501 Dor?, supra note 11 at para 30. 502 Ibid at paras 55?56. This can be contrasted with administrative bodies? decisions on the constitutionality of statutory provisions (under s. 52) and to grant remedies under s. 24, which are subject to judicial review on a correctness standard: see Martin, supra note 231 at para 31; Dunsmuir, supra note 10 at para 58; Dor?, supra note 11 at para 43. 97 the Oakes test are poorly suited to the review of discretionary decisions.503 Further, a conception of administrative bodies as judicial-like is evident in the Dor? decision.504 The Court suggests that administrative decision-makers, when exercising discretionary powers, are in fact similar to the courts, so the approach the Court takes in Dore is similar to the approach taken to assess whether the common law is consistent with the Charter.505 Thirdly, the Court recognizes that there is not necessarily only one correct conclusion to the question of how a Charter right is justifiably limited. As the notion that there may be more than one reasonable answer or decision is inherent in the concept of reasonableness review,506 the Dor? approach reflects a recognition that there may be more than one decision that is Charter-compliant. In this way, reasonableness review may be seen as rejecting a ?judicial monopoly? on the interpretation of the Charter and encouraging a more democratic process of interpretation.507 Similarly, the Court raises concerns about the courts becoming de novo appellate bodies from all administrative decision-makers that make decisions impacting on Charter rights and freedoms,508 as a reason for rejecting a correctness standard of review. In spite of these developments, the tension between the Charter as fundamental and supreme law and the policy within administrative law of judicial restraint towards administrative tribunals remains. In particular, administrative law review on a reasonableness 503 Dor?, supra note 11 at para 37. 504 See Ibid at paras 37?42. Compare with Lamer CJC?s conception in Slaight and Cooper of administrative bodies as servants to legislature and ?just? part of the executive (see above, Section 2.2.1 and 2.3.1). The Court?s conception of administrative bodies as similar to courts is discussed further below at Section 5.1. 505 See, for example, Dolphin Delivery, where the Court held that the Charter does apply to the common law, and the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution: RWDSU v Dolphin Delivery Ltd.,  2 SCR 573 at para 39. 506 See C.U.P.E. v N.B. Liquor Corporation, supra note 381 at 230, 237; Chamberlain, supra note 9 at para 156, Gonthier J, dissenting; Law Society of New Brunswick v Ryan, supra note 393 at para 51; Dunsmuir, supra note 10 at para 47. 507 See Cartier, Genevi?ve, supra note 25 at 84. Cartier suggests that, on a Baker-type approach, administrative law and the Charter can be seen to be working in tandem toward articulating, enforcing, and modifying fundamental values, rather than administrative law being subordinated to the Charter. Each branch of government, as well as the citizen, participates in the development and articulation of fundamental values. 508 Dor?, supra note 11 at para 51. Citing Mullan, supra note 331 at 145. 98 standard is premised on the basis that courts do not conduct a review of the merits of an administrative decision but rather ensure that the decision is within the bounds of the law.509 Proportionality review according to the Charter approach, while not a full merits review, does engage in a weighing of the factors put forward as justifying the rights-limiting measure. The key tensions inherent in the relationship between administrative law and the Charter thus remain and will continue to play out in subsequent cases.510 As the next section examines, the precise nature of the approach to judicial review of rights-infringing administrative decisions required by Dor? is somewhat unclear. 3.4 The Dor? approach: a new proportionality test? In this section, I outline the Court?s guidance to administrative decision-makers on making a decision that accords with Charter guarantees, and the approach to be taken on judicial review. I then analyze existing methodological approaches the Court takes to reviewing compliance with the Charter in an attempt to determine whether the Dor? approach requires a new proportionality test and what may be required by this test. 3.4.1 Approach to exercising discretion and judicial review In Dor?, the Court explained that administrative decision-makers making decisions that impact on Charter guarantees must balance the Charter value(s) with statutory objectives, and make a decision that is within a range of possible ?acceptable? or ?reasonable? outcomes.511 The decision-maker should ask how the Charter value at issue will best be protected in light of the statutory objectives, and balance the severity of the interference of the Charter protection 509 While the courts may ensure that relevant considerations were taken into account by the decision-maker, they must not inquire into the relative weight assigned to the various factors or how those factors were balanced: see Maple Lodge Farms v Government of Canada,  2 SCR 2 at 7?8; Suresh, supra note 258 at para 37. See also Cartier, supra note 162 at 395. 510 The interrelationship between Charter rights and administrative law has recently been described as ?a deeply complex one that courts still struggle with?: Flood & Dolling, supra note 23 at 5. 511 Dor?, supra note 11 at paras 55?56. Citing Dunsmuir, supra note 10 at para 47; RJR-MacDonald, supra note 77 at para 160. 99 with those objectives.512 The Court states that this balancing exercise is ?at the core of the proportionality exercise?.513 As noted above, on judicial review, the fact that Charter interests are implicated does not result in a different standard of review than would otherwise apply, and the principles set out in the Dunsmuir case should be applied to determine the appropriate standard of review.514 On this basis, the Court concluded that reasonableness remains the applicable review standard for disciplinary decisions. However, the Court explained:515 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. The question to be asked on judicial review is whether the decision reflects a ?proportionate balancing? of the Charter rights and values at play.516 If the decision-maker has ?properly? balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.517 Applying the new approach, the Court said its role was to determine whether the Council?s decision that a reprimand was warranted reflected a proportionate balancing of Mr. Dor??s expressive rights with its statutory mandate to ensure that lawyers behave with ?objectivity, moderation and dignity? in accordance with article 2.03 of the Code of Ethics.518 512 Dor?, supra note 11 at para 56. 513 Ibid. 514 Ibid at para 57. See Dunsmuir, supra note 10 at paras 32?34, 43?45. 515 Dor?, supra note 11 at para 7. 516 Ibid at para 57. 517 Ibid at para 58. 518 Article 2.03 of the Code of Ethics was created pursuant to s. 87 of the Professional Code, RSQ, c C-26 [Professional Code]. Section 87 provides [emphasis added]: The board of directors must make, by regulation, a code of ethics governing the general and special duties of the professional towards the public, his clients and his profession, particularly the duty to discharge his professional obligations with integrity. Such code must contain, inter alia: (1) provisions to prevent conflict of interest situations; (2) provisions defining, if applicable, the professions, trades, industries, businesses, offices or duties incompatible with the dignity or practice of the profession; 100 The only issue before the Supreme Court in Dor? was whether the Council?s decision to reprimand Mr. Dor? violated the Charter (as Mr. Dor? had dropped his challenge to his 21-day suspension).519 The Court noted that the Council?s decision involved the ?fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession? and, while lawyers should not be expected to behave like ?verbal eunuchs?, they are required ?behave with transcendent civility?.520 Criticism may be robust, but must not exceed ?the public?s reasonable expectations of a lawyer?s professionalism?.521 In deciding to reprimand Mr. Dor?, the Disciplinary Council had been ?conscious? of the fact that article 2.03 may constitute a restriction on a lawyer?s expressive rights. The Court concluded that, in light of ?the excessive degree of vituperation in the letter?s context and tone?,522 the Council?s decision to reprimand Mr. Dor? reflected ?a proportionate balancing of its public mandate to ensure that lawyers behave with ?objectivity, moderation and dignity? with the lawyer?s expressive rights?.523 The Council?s decision therefore did not represent an unreasonable balance of Mr. Dor??s expressive rights with the statutory objectives.524 Accordingly, the decision was reasonable. The Court?s explanation and application of this approach to judicial review raises many questions. How exactly should courts determine whether the decision reflects a ?proper? or ?proportionate? balance while applying a reasonableness standard of review? Will the courts inquire into the appropriate weighting of the Charter interest against other interests, and ? (6) provisions identifying offences, if any, for the purposes of subparagraphs 5 and 6 of the first paragraph of section 45 or of the first paragraph of section 55.1. 519 See Dor?, supra note 11 at para 67. 520 Ibid at para 68. 521 Ibid at para 69. 522 Ibid at para 71. 523 Ibid at para 8. 524 Ibid at para 71. 101 against the ?statutory objectives??525 Should courts engage in a formal analysis of the rights-infringement based on the Charter jurisprudence?526 How does the ?nature of the decision?527 influence the analysis? Does the Dor? approach of ?proportionate balancing? entail a new proportionality analysis test or is the test just a rephrasing an existing doctrine? To attempt to answer these questions, in the following sections I analyze existing doctrine as illustrated in the following approaches, which may be seen as variations of a proportionality analysis: ? The Oakes test approach, used as the method of analysis when evaluating the legislative limitation of Charter rights. ? The ?principles of fundamental justice? approach, as conducted when interpreting and applying s. 7 of the Charter. ? The ?balancing Charter values? approach, used to review a common law rule for consistency with the Charter. I explore the forms proportionality analysis takes in these cases, which I then draw on to assess the nature of the proportionality analysis in Dor? more fully. While ultimately concluding that the exact nature of the proportionality test required by the Dor? approach is unclear, I suggest some possible interpretations of the Dor? approach to proportionality analysis based on prior jurisprudence and academic literature. 3.4.2 Proportionality analysis under the Charter: the Oakes test As noted in Chapter 1, when reviewing legislation that limits an individual?s Charter rights, the Court engages in a two-stage analysis: a court first determines whether the challenged measure infringes upon a Charter right and, if it does, the review moves to consider whether the measure is justified under s. 1 of the Charter.528 The onus of justifying 525 Macklin, supra note 3 at 318. 526 Wildeman, supra note 23 at 377. 527 Dor?, supra note 11 at para 57. 528 Hogg, supra note 2 at 36.4(c). 102 the limitation of a Charter right rests on the party seeking to have that limitation upheld.529 In R v Oakes, the Court adopted the concept of proportionality as the method of analysis used to determine whether a limit on a Charter right is ?reasonable? and ?demonstrably justified? under s. 1.530 First, the objective of the limiting measure must be sufficiently important to warrant overriding a constitutionally protected right or freedom. Once a sufficiently significant objective is recognized, the party invoking s. 1 must satisfy a proportionality analysis with reference to this objective by showing that the means chosen are reasonable and demonstrably justified.531 Thus the next three steps of the Oakes test require that: the measures adopted are rationally connected to the objective in question; the measures impair the right as minimally as possible; and there is proportionality between the objective and the effects of the measures (including between the deleterious and the salutary effects). The following sections explore each of these criteria, with reference to the Court?s jurisprudence. 22.214.171.124.1 Sufficiently important objective In Oakes, the Court held:532 [T]he objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": ? The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. Not every government interest or policy objective is entitled to s. 1 consideration: the Court is ?guided by the values and principles essential to a free and democratic society?, which include ?respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, 529 Oakes, supra note 8 at 138. See also Hogg, supra note 2 at 38.5. 530 Oakes, supra note 8 at 138?139. 531 Ibid at 139. 532 Ibid at 138. 103 and faith in social and political institutions which enhance the participation of individuals and groups in society?.533 However, the courts have not applied the important objective requirement stringently, perhaps even accepting almost any purpose.534 A review of the cases reveals that sufficiently important objectives include: protection of competing rights;535 protection of public safety, order, health, or morals;536 national security;537 the administration of justice;538 protection of children from advertising;539 and suppression of the willful promotion of hatred against identifiable groups.540 However, the objective will not be constitutionally valid if it amounts to a direct denial or contradiction of the right,541 or a ?simple majoritarian political preference for abolishing a right altogether?.542 A measure whose sole purpose is financial will generally not qualify as a pressing and substantial objective,543 although the Court has found that certain financial objectives, such as controlling health care expenditure or managing a financial crisis, may amount to a sufficiently important objective.544 Administrative convenience is also not an adequate reason for infringing on Charter rights.545 533 Ibid at 136. Lorraine Weinrib argues that the concept of a free and democratic society is the genesis of both the Charter rights and freedoms and the standard against which limits of those rights and freedoms are justified: Lorraine Weinrib, ?The Supreme Court of Canada and Section One of the Charter? (1988) 10 Sup Ct L Rev 469 at 471. Accordingly, s. 1 merely gives legal expression to the common body of principles underlying the guarantees: Weinrib, supra note 98 at 122. 534 Constitutional Law Group, supra note 114 at 777. 535 Sauv?, supra note 369 at para 20; Lavigne v Ontario Public Service Employees Union,  2 SCR 211 at 294?296. 536 R v Big M Drug Mart Ltd.,  1 SCR 295 at para 98; RJR-MacDonald, supra note 77 at 146; Butler, supra note 476 at 493. 537 Suresh, supra note 258 at para 85. 538 Ref re Remuneration of Judges, supra note 450 at paras 281?285. 539 Irwin Toy, supra note 189 at 987. 540 Keegstra, supra note 135. 541 Vriend, supra note 140 at para 116; R v Big M Drug Mart Ltd., supra note 536 at 351?353. 542 Sauv?, supra note 369 at para 20. 543 Ref re Remuneration of Judges, supra note 450 at paras 281?285; Martin, supra note 231 at paras 109?110. 544 Eldridge, supra note 7 at para 84; Newfoundland (Treasury Board) v N.A.P.E., supra note 450 at paras 72?76. See also Figueroa v Canada (Attorney General),  1 SCR 912 at para 66. 545 Singh v Minister of Employment and Immigration,  1 SCR 177 at 218?219; Stoffman v Vancouver General Hospital,  3 SCR 483 at 554?555. 104 It is the legislation?s original purpose when enacted that is examined for this step of the test,546 although objectives may change over time and a ?shift in emphasis? to reflect changing community values may be permissible.547 At this stage, the government does not need to show that the objective is furthered by the measure chosen: all that is required is the assertion of a sufficiently important objective.548 However, the characterization of the objective can have a significant influence on the next three steps of the Oakes test. If the objective is defined at a high level of generality (for example, as protection of the public), justifying the limit under the minimal impairment limb will be difficult because it will be easy to formulate alternative ways to achieve the wide objective.549 However, if the level of generality is too low (for example, the protection of children from advertising) the proportionality analysis becomes tautological and the next three steps will have little work to do. For this reason, the definition of the measure?s objective plays an integral role in the proportionality analysis.550 126.96.36.199.2 Rational connection The second step of the Oakes test is to determine whether the limit on a Charter right is ?rationally connected? to the objective determined in the first step. The Court in Oakes explained: ?the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective.?551 The Court has subsequently held that the rational connection requirement merely entails showing that the objective is ?logically 546 R v Big M Drug Mart Ltd., supra note 536 at 335. 547 Butler, supra note 476 at 496. 548 Harper, supra note 477 at paras 25?26; Bryan, supra note 469 at paras 32?34. 549 Hogg, supra note 2 at 38.9(a). 550 Aharon Barak, ?Proportional Effect: The Israeli Experience? (2007) 57 UTLJ 370 at 371?372. For example, had the legislature?s objective in Oakes been defined as to alleviate the Crown?s difficulty in gathering evidence to prove an intent to traffic beyond a reasonable doubt, rather than to protect society from drug trafficking, the case would have likely have passed the rational connection test: Slattery, supra note 113 at 27. 551 Oakes, supra note 8 at 139. I note, however, that arbitrary or unfair measures will not necessarily fail at this step: see Barak, supra note 70 at 307. 105 furthered by the means government has chosen to adopt?,552 and ?reason or logic may establish the requisite causal link?.553 Thus direct proof of a causal relationship between the objective of the limit and the measures enacted by the impugned provision is not required.554 The legislative provision in issue in Oakes was held to fail at this step because the limit on the right (that is, the infringement of s. 11(d) of the Charter caused by placing on a defendant found to be in possession of a prohibited drug the burden of proving he or she was not trafficking) was not rationally connected to the objective of the limit (protecting society from drug trafficking).555 However, very few cases since have failed at the rational connection step,556 and those cases that have arguably could have turned on the minimal impairment requirement.557 The Court has yet to examine the scope of the ?rational connection? limb in any depth,558 and this step has only become significant in cases where there is clearly no connection between the means and the purpose.559 552 Lavigne v Ontario Public Service Employees Union, supra note 535 at 219. See also Harper, supra note 477 at paras 25?26; Bryan, supra note 469 at paras 32?34. 553 Harper, supra note 477 at para 28. 554 Butler, supra note 476; Keegstra, supra note 135. See further Hogg, supra note 2 at 38.10(b). 555 Oakes, supra note 8 at 141?142. The Court?s reliance on this step of the test has been criticized for being a weak ground for the decision compared to the possible rationale under the minimal impairment step: see Hogg, supra note 2 at 38.10(a); Slattery, supra note 113 at 27. Slattery suggests that the focus in Oakes on rational connection resulted in the Court ?squeezing? considerations of justice under the rubric of rational connection (concluding that possession of a small quantity of drugs does not support the inference of an intent to traffic). However, this does not relate to the legislature?s actual objective, which was to alleviate the Crown?s difficulty in gathering evidence to prove an intent to traffic beyond a reasonable doubt: Ibid at 27. 556 JTI-Macdonald, supra note 372 at para 40. For a recent example of a measure failing the rational connection step, see Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at para 99. In that case, the Court found that certain words in s. 14(1)(b) of the Saskatchewan Human Rights Code (?ridicules, belittles or otherwise affronts the dignity of?) were not rationally connected to the objectives of eliminating discrimination and the other wrongful effects of hatred, and therefore unjustifiably infringed s. 2(b) of the Charter. 557 Hogg, supra note 2 at 38.10(a). For example, see Vancouver Transit, supra note 7. In that case, the Court held that the transit authority?s policy prohibiting placing political messages on the sides of buses limited the respondents? right to freedom of expression under s. 2(b). The objective of ?a safe, welcoming public transit system? was held to be a sufficiently important objective to warrant placing a limit on freedom of expression but the Court was not convinced that the limits on political content imposed by the policy were rationally connected to this objective (at para 76). However the Court went on to consider whether the limit constituted a minimal impairment on the right to freedom of expression, concluding that the means chosen to implement the objective was neither reasonable nor proportionate to the impairment of political speech (paras 77-80). 558 Barak, supra note 550 at 373. 559 Grimm, supra note 137 at 389; Barak, supra note 70 at 316. 106 188.8.131.52.3 Minimal impairment The third step in the Oakes test requires that the limit impair the right or freedom in question as little as possible.560 However the Court subsequently clarified that the legislator is allowed some leeway561 or ?margin of appreciation?,562 so that the impugned measure need not be the least impairing option.563 The question is whether the measure ?falls within a range of reasonable alternatives?.564 If the Court finds that other measures were available to the Government that would achieve the desired objective but would impair the Charter right less than the impugned measure, the measure is not justified under s. 1. Nearly all of the s. 1 cases have turned on the minimal impairment requirement.565 Prior to Alberta v Hutterian Brethren of Wilson Colony [Hutterian],566 the Court would hold that the measure failed the minimal impairment test if a small or debatable decrease in the measure?s effectiveness in achieving its objective would significantly reduce its interference with the protected right.567 The Court therefore often balanced alternative approaches that would further a similar objective in the minimal impairment step, resulting in the final step of the Oakes test (proportionate effect) not playing a large role.568 560 Oakes, supra note 8 at 139. 561 RJR-MacDonald, supra note 77 at para 160.: ?The impairment must be 'minimal', that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement.? 562 Irwin Toy, supra note 189 at 990; R v Sharpe, supra note 448 at para 160; Newfoundland (Treasury Board) v N.A.P.E., supra note 450 at 84; Fraser, supra note 455 at para 81. 563 Harper, supra note 477 at para 110; Keegstra, supra note 135 at 776; R v Sharpe, supra note 448 at para 97; Butler, supra note 476 at 504. A limit prescribed by law should not be struck out merely because the Court can conceive of an alternative which seems to it to be less restrictive: Committee for the Commonwealth of Canada v Canada, supra note 191 at 248. 564 RJR-MacDonald, supra note 77 at para 160; Multani, supra note 7 at paras 50?53; Hutterian Brethren, supra note 8 at para 37. 565 Hutterian Brethren, supra note 8 at para 75; Constitutional Law Group, supra note 114 at 777?779; Attaran, supra note 81 at 265; Hogg, supra note 2 at 38.8(b). 566 Hutterian Brethren, supra note 8. 567 Constitutional Law Group, supra note 114 at 778. 568 Ibid. 107 However, in Hutterian, McLachlin CJC emphasized that the government?s pressing and substantial objective should not be altered when conducting a minimal impairment analysis.569 The minimum impairment test: ?requires only that the government choose the least drastic means of achieving its objective. Less drastic means which do not actually achieve the government?s objective are not considered at this stage.?570 So a proposed alternative that is less impairing but that does not give ?sufficient protection? to the government?s goal is not a valid minimally impairing alternative.571 If a proposed less-impairing alternative involves limiting or qualifying the government?s pressing and substantial objective, ?[r]ather than reading down the government?s objective within the minimal impairment analysis, the court should acknowledge that no less drastic means are available and proceed to the final stage of Oakes.?572 The Hutterian decision reinforces the importance of the characterization of the objective to the likelihood that a rights-impairing measure will be found to be minimally impairing. It is rare that a less-impairing alternative measure will advance the measure?s objective as completely or as effectively.573 So if the objective is characterized narrowly, the ?fit? between the objective and the measures will inevitably be minimally impairing.574 The final stage of the Oakes test therefore becomes determinative. 569 Benjamin L Berger, ?Section 1, Constitutional Reasoning and Cultural Difference: Assessing the Impacts of Alberta v. Hutterian Brethren of Wilson Colony? (2010) 51 Sup Ct L Rev, online: <https://pi.library.yorku.ca/ojs/index.php/sclr/article/view/34801> at 32. 570 Hutterian Brethren, supra note 8 at para 54. 571 Ibid at para 55. The question to be asked at the minimal impairment stage is ?whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner?. Thus ?the court need not be satisfied that the alternative would satisfy the objective to exactly the same extent or degree as the impugned measure? (at para 55). 572 Ibid at para 76. 573 Constitutional Law Group, supra note 114 at 778. 574 Attaran, supra note 81 at 266. 108 184.108.40.206.4 Proportionate effect The final step of the Oakes test requires that there be ?a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ?sufficient importance??.575 The measure may fail to be justified because of the severity of the deleterious effects on individuals or groups.576 In Dagenais, the Court rephrased this step, requiring that courts consider not only the objective of the impugned measure but also its beneficial effects: ?there must be a proportionality between the deleterious and the salutary effects of the measures?.577 In the final stage of the Oakes test the Court therefore compares or balances the limiting measure?s benefit or value (in terms of ?the collective good sought to be achieved?) with its ?costs?. The judge ?balance[s] the interests of society with those of individuals and groups?.578 Canadian constitutional scholar Peter Hogg suggests that the proportionality limb of the test is actually redundant, as it is just a restatement of the first three steps, so that an affirmative answer to the (appropriately defined) first step/sufficiently important objective will always lead to an affirmative answer to the fourth step/proportionate effect.579 He notes, however, that the Court has not accepted this argument and nor has Aharon Barak, who according to Hogg is ?perhaps the foremost scholar of proportionality?.580 Barak argues that the minimal impairment step has no power to protect human rights if there are no less-drastic means available, even if the limitation of the right is severe.581 Thus, the ?proportionate effect? limb is necessary because, even if the objective chosen by the legislature is proper, the means 575 Oakes, supra note 8 at 139. 576 Ibid at 140. 577 Dagenais, supra note 279 at 889. 578 Oakes, supra note 8 at 139. 579 Hogg, supra note 2 at 38.12. 580 Ibid. See Barak, supra note 550 at 381. Barak is also a former Chief Justice of the Israeli Supreme Court. 581 Barak, supra note 550 at 373. See also Grimm, supra note 137 at 396. Grimm argues that the proportionality step is essential because the two previous steps can only reveal the failure of a law to reach its objective; they cannot evaluate the relative weight of the objective compared to the fundamental right in the context of the measure under review. 109 are rational and are no more drastic than necessary, the resulting limitation on human rights may be so severe that it cannot be justified in a free and democratic society.582 In Hutterian, McLachlin CJC explicitly rejected Hogg?s argument,583 and accepted Barak?s argument that if the analysis were to end with the rational connection and minimal impairment steps being met, the result might be to uphold a severe impairment on a right in the face of a less important objective.584 Resolving matters at the final stage is therefore to be preferred because this overall balancing ?allows for a broader assessment of whether the benefits of the impugned law are worth the cost of the rights limitation?.585 Only the proportionate effect step takes full account of the severity of the deleterious effects of a measure on individuals or groups.586 In Hutterian, however, the salutary effects of the legislation (in terms of minimizing the risk of misuse of driver?s licences for identity theft) were held to outweigh the deleterious impacts on the religious freedom of the community.587 The Court?s recent emphasis on the ?proportionate effect? step of the Oakes test may indicate that this step has a new prominence. However, while the Court?s recent decisions do 582 Barak, supra note 550 at 381. 583 Hutterian Brethren, supra note 8 at paras 75?77. 584 The Court had previously emphasized the importance of the final step of the Oakes test, stating: ?If rational connection and minimal impairment were to be met, and the analysis were to end there, the result might be to uphold a severe impairment on a right in the face of a less important objective?: JTI-Macdonald, supra note 372 at para 46. See also R v Sharpe, supra note 448. Justice McLachlin (as she then was) had also argued that the balancing of competing interests should be left to the final step of the Oakes test: R v Lucas, supra note 460 at paras 116?119, McLachlin J, dissenting. 585 Hutterian Brethren, supra note 8 at para 77. 586 Ibid at para 76. Thus the majority of the Court in Hutterian Brethren found that the government?s legislative goal (?to maintain an effective driver?s licence scheme that minimizes the risk of fraud to citizens as a whole?) was weighty whereas the deleterious effects of the legislation ?fall at the less serious end of the scale? (at paras 101-102). The question ?is whether the limit leaves the adherent with a meaningful choice to follow his or her religious beliefs and practices? (at para 88). In this case, the costs on the religious practitioner (?in terms of money, tradition or inconvenience?: at para 95) were not so severe as to ?negate the choice that lies at the heart of freedom of religion? (at para 99). 587 The Court was not in agreement on this point, however: see LeBel J?s suggestion that an ?alternative measure might be legitimate even if the objective could no longer be obtained in its complete integrity?: Ibid at para 197. Abella J?s conclusion was that ?[t]o suggest, as the majority does, that the deleterious effects are minor because the Colony members could simply arrange for third party transportation, fails to appreciate the significance of their self sufficiency to the autonomous integrity of their religious community?: Ibid at para 167. 110 not yet reveal such a prominence,588 it may be that leaving the balancing of interests, and alternative measures that achieve the government?s goal to a lesser extent, to be considered in the final stage of the analysis could lead to a more transparent and honest mode of reasoning,589 and improve the quality of the engagement.590 220.127.116.11 Oakes test in administrative law Despite the Court in Dor? suggesting that there are difficulties applying the Oakes test to an administrative decision, the Court has undertaken an Oakes test analysis of administrative decisions.591 For example, in Slaight, Lamer J held that the objective of the adjudicator?s order was ?to counteract, or at least to remedy, the consequences of the dismissal found by the adjudicator to be unjust?, which in his opinion is sufficiently important to warrant a limitation on a Charter right or freedom.592 The majority adopted this characterization of the objective, pointing out that ?in a general sense, this case falls within a class of cases in which the governmental objective is that of protection of a particularly vulnerable group, or members thereof?.593 The majority further held that orders were rationally linked to this objective,594 and that there was ?no less intrusive measure that the adjudicator could have taken and still 588 For example, in A.C. v Manitoba, although the majority held that there was no breach of a Charter right, Justice Binnie (dissenting) would have found that the impugned provisions breached the claimant?s rights, and could not be justified under s. 1 because the claimant ?has demonstrated that the deleterious effects are dominant?: A.C. v Manitoba (Director of Child and Family Services), 2009 SCC 30 at para 237. In Nguyen v Quebec, the objectives of the measures adopted by the legislature (to protect and promote the French language and resolve the problem of expansion of the categories of rights holders resulting from the enrolment of students in bridging schools) were held to be sufficiently important and legitimate to justify the limit on the claimants? s. 23(2) rights but the means chosen by the legislature were ?excessive? and ?overly drastic?, and therefore ?do not meet the standard of minimal impairment?: Nguyen v Quebec (Education, Recreation and Sports), 2009 SCC 47 at para 37?42. The Court also held that part of the legislative provision under consideration in R v Tse was not justified, concluding (in one paragraph) that the measure failed ?the proportionality analysis? because there was a less-impairing alternative available: R v Tse, 2012 SCC 16 at para 98. 589 Berger, supra note 569 at 46. 590 Ibid at 39. 591 See Slaight, supra note 7; Little Sisters, supra note 262; Multani, supra note 7; Lake, supra note 9; Vancouver Transit, supra note 7; Canada v PHS, supra note 105. 592 Slaight, supra note 7 at 1082, Lamer J. 593 Ibid at 1051. 594 Ibid at 1053. 111 have achieved the objective with any likelihood?.595 In terms of proportionate effect, the majority concluded that the objective of the orders was ?a very important one?, and the effects of the orders were not so deleterious as to outweigh this objective.596 In Multani, the majority explicitly applied the Oakes test to the council of commissioners? decision prohibiting a student from wearing his kirpan to school. The majority held that the objective of ensuring reasonable safety in schools was sufficiently important to warrant overriding a constitutionally protected right or freedom.597 The council of commissioners? decision had a rational connection with the objective of ensuring a reasonable level of safety in schools (given that the kirpan does have the characteristics of a bladed weapon and could therefore cause injury).598 However, the respondents were held to have ?failed to demonstrate that it would be reasonable to conclude that an absolute prohibition against wearing a kirpan minimally impairs [the student?s] rights?,599 and the majority also concluded that the deleterious effects of a total prohibition outweighed its salutary effects.600 In Vancouver Transit, while the Court distinguished the case as one involving a challenge to a policy rather than an individual decision, the case could equally be characterized as a review of an administrative decision. While the decision was made pursuant to the transit authority?s policy (and it was appropriate that the policy be declared of no force or effect to the extent of its inconsistency with the Charter), the Court?s s. 1 analysis 595 Ibid. 596 Ibid at 1056?1057. 597 Multani, supra note 7 at para 77. 598 Ibid at para 49. 599 Ibid at para 77. Charron J for the majority noted: ?it must be determined whether the decision to establish an absolute prohibition against wearing a kirpan ?falls within a range of reasonable alternatives? (at para 51). 600 Ibid at para 79. A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others. On the other hand, accommodating Gurbaj Singh and allowing him to wear his kirpan under certain conditions demonstrates the importance that our society attaches to protecting freedom of religion and to showing respect for its minorities. The deleterious effects of a total prohibition thus outweigh its salutary effects. 112 could equally have been applied to the individual administrative decisions challenged by the Canadian Federation of Students. Canada v PHS is another case in which the Court carried out a proportionality analysis of an administrative decision. However, because this case raised issues under s. 7 of the Charter, the proportionality of the Minister?s decision was considered within the ?principles of fundamental justice? analysis. 3.4.3 ?Principles of fundamental justice? analysis Section 7 of the Charter provides as follows:601 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Deprivations of life, liberty and security of the person must thus respect the principles of fundamental justice in order to be consistent with the Charter. In this way, s. 7 provides the rights-infringer an opportunity to justify a limitation of rights before reaching the s. 1 justification (Oakes test) stage. The ?principles of fundamental justice?, as defined by the Court, are the core values within the justice system that must prevail over these rights for the greater good of society, and accordingly the principles of fundamental justice ?are to be found in the basic tenets of the legal system?.602 For a rule or principle to constitute a principle of fundamental justice,603 it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. 601 Charter, supra note 1, s 7. 602 Re B.C. Motor Vehicle Act,  2 SCR 486 at 503. 603 R v Malmo-Levine; R v Caine, 2003 SCC 74 at para 113, Gonthier and Binnie JJ. 113 Fundamental justice therefore performs a function similar to s. 1 of the Charter, that is, of guaranteeing basic human rights within limits considered reasonable in Canadian society.604 The principles of fundamental justice are not restricted to procedure, and include the concepts of vagueness, arbitrariness, overbreadth, and gross disproportionality. In each of these principles, parallels can be drawn with the components of the Oakes test. 18.104.22.168 Vagueness It is a principle of fundamental justice that laws not be too vague. A law is unconstitutionally vague if it ?so lacks in precision as not to give sufficient guidance for legal debate?.605 This requirement of legal precision is founded on two rationales: the need to provide fair notice to citizens of prohibited conduct, and the need to constrain enforcement discretion.606 A law will only be declared unconstitutionally vague after the court has considered the possible legislative interpretations (including an analysis of considerations such as the purpose, subject matter, nature, prior judicial interpretation, societal values, and related provisions), and concluded that interpretation is not possible.607 The Court has held that a deferential approach should be taken in relation to legislative enactments with legitimate social policy objectives, to avoid hindering the state?s ability to pursue those objectives.608 The requirement that laws be sufficiently precise aims to protect fundamental rule of law values, such as accessibility and certainty in law, and is thus akin to the ?prescribed by law? requirement in s. 1 of the Charter. 604 See Denis W Boivin, ?Accommodating Freedom of Expression and Reputation in the Common Law of Defamation? (1996) 22 Queen?s LJ 229 at 278?279. 605 R v Nova Scotia Pharmaceutical Society,  2 SCR 606 at 643. An unintelligible provision gives insufficient guidance for legal debate: Ibid at 638. 606 Ontario v Canadian Pacific Ltd., supra note 465 at para 46. 607 Ibid at para 47. 608 R v Nova Scotia Pharmaceutical Society, supra note 605 at 642; Ontario v Canadian Pacific Ltd., supra note 465 at para 49. 114 22.214.171.124 Arbitrariness Another principle of fundamental justice is that laws should not be arbitrary,609 meaning that the state cannot limit an individual?s rights where the limit ?bears no relation to, or is inconsistent with, the objective that lies behind the legislation?.610 A law is arbitrary if it ?lacks a real connection on the facts to the purpose the [law] is said to serve?.611 The similarity of the arbitrariness principle to the rational connection limb of the Oakes test is obvious. However, the Court has not agreed on a definition of arbitrariness, and has expressed differences of opinion regarding whether arbitrariness is separate from disproportionality,612 and about the level of connection required between the objective and the limit in question.613 126.96.36.199 Overbreadth Related to the concept of vagueness, the ?principles of fundamental justice? also include a requirement that the law not be overbroad, that is that the means used to achieve an objective must be ?reasonably tailored?,614 and not ?too sweeping?,615 in relation to the objective.616 If the means used are broader than is necessary to accomplish that objective, ?the principles of fundamental justice will be violated because the individual?s rights will have been limited for 609 R v Morgentaler, supra note 132; Rodriguez v British Columbia (Attorney General),  3 SCR 519; Malmo-Levine, supra note 603; Canada v PHS, supra note 105. 610 Rodriguez, supra note 609 at 619?620, McLachlin J (as she then was). 611 Chaoulli, supra note 100 at para 134, McLachlin CJC and Major J. In Canada v PHS, the Court held that the Minister?s decision was arbitrary as it undermined the very purposes of the enabling legislation: Canada v PHS, supra note 105 at para 136. 612 In Malmo-Levine, the majority opinion treated the two principles separately: Malmo-Levine, supra note 603 at paras 135?183, Gonthier and Binnie JJ. However the dissenting judgments treated disproportionality as the test of arbitrariness: see Ibid at paras 277?280, LeBel J; paras 289?302, Deschamps J. In Canada v PHS, McLachlin CJC for the Court treated the two doctrines separately but held that both were applicable in that case, and acknowledged that ?the jurisprudence on arbitrariness is not entirely settled?: Canada v PHS, supra note 105 at paras 129?133. 613 In Chaoulli, three justices stated that a limit must be ?necessary? to further the state objective Chaoulli, supra note 100 at paras 131?132, McLachlin CJC and Major J. Binnie and LeBel JJ, on the other hand, approved of the prior definition of arbitrariness as the deprivation of a right . that ?bears no relation to, or is inconsistent with, the state interest that lies behind the legislation?: Ibid at para 232, Binnie and LeBel JJ. 614 R v Heywood,  3 SCR 761 at 794. 615 Ibid at 792. 616 See Heywood, supra note 614; R v Demers, 2004 SCC 46. 115 no reason?.617 The doctrine of overbreadth thus allows the courts to undertake a review of the efficacy of the means enacted to achieve a legislative objective,618 in a similar manner to the minimal impairment stage in the Oakes test.619 As with the minimal impairment stage, the courts must pay ?a measure of deference ? to the means selected by the legislature?, such that a court ?should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective if he or she had been the legislator?.620 188.8.131.52 Gross Disproportionality In the 2003 case of Malmo-Levine, the Court established that ?gross disproportionality? also amounts to a breach of the principles of fundamental justice. Gross disproportionality describes state actions or legislative measures that are so extreme as to be disproportionate to any legitimate government objective.621 The doctrine of disproportionality requires the Court to determine whether the law pursues a ?legitimate state interest? and, if it does, whether the harmful effects of the legislative measure are grossly disproportionate to the state interest.622 For example, in Canada v PHS, the Court held that the effect of the Minister?s decision to deny the exemption was ?grossly disproportionate? to any state interest in maintaining an absolute prohibition of possession of illegal drugs on Insite?s premises, as it disregarded the evidence that Insite saved lives and prevented injury and disease without any countervailing adverse effects on public safety.623 The doctrine of gross disproportionality thus fulfils a similar function to the final step of the Oakes test, which requires that there be proportionality between the effects of the rights-limiting measure and the legislative objective. 617 Heywood, supra note 614 at 792?793. 618 Peter W Hogg, ?The Brilliant Career of Section 7 of the Charter? (2012) 58 Sup Ct L Rev, online: <http://pi.library.yorku.ca/ojs/index.php/sclr/article/view/36530> at 204. 619 As the Court stated in R v Heywood, ?[o]verbroad legislation which infringes s. 7 of the Charter would appear to be incapable of passing the minimal impairment branch of the s. 1 analysis?: Heywood, supra note 614 at 802?803. 620 Ibid at 793. 621 Malmo-Levine, supra note 603 at para 143. 622 Ibid. 623 Canada v PHS, supra note 105 at para 136. 116 Thus the Court has essentially imported the s. 1 Oakes test into the ?principles of fundamental justice? analysis. However, the definitions of these principles of fundamental justice have been criticized for the ease with which a judge who disapproves of a law can find that that law is arbitrary, overbroad, or disproportionate.624 On the other hand, the Court?s application of these doctrines has also been criticized for being ?very deferential?.625 3.4.4 Balancing Charter values: the common law approach This section examines cases in which a common law rule impacted upon Charter values but the Court undertook a balancing exercise rather than applying the Oakes test to assess whether the common law had to be altered as a result. In Dor?, the Court pointed out that although each of these cases engaged Charter values, ?the Court did not see the Oakes test as the vehicle for balancing whether those values were taken into sufficient account?.626 In the Court?s view, the same is true in the administrative law context, where decision-makers must exercise their statutory discretion in accordance with Charter protections.627 The Supreme Court of Canada first addressed the Charter?s application to the common law in RWDSU v Dolphin Delivery [Dolphin Delivery].628 In that case, the Court held that the Charter applies to the common law only ?insofar as the common law is the basis of some governmental action which, it is alleged, infringes a guaranteed right or freedom?.629 The Court thus interpreted the concept of governmental action for the purpose of the Charter as excluding judicial enforcement of common law rules. However, the Court held that, where no 624 Hogg, supra note 618 at 203. 625 See Choudhry, supra note 106 at 531. 626 Dor?, supra note 11 at para 42. 627 Ibid. 628 Dolphin Delivery, supra note 505. In Dolphin Delivery, a private company obtained an injunction against a trade union, which was granted under the common law prohibiting secondary picketing. The union claimed that the picketing was protected by the freedom of expression guarantee of s. 2(b) of the Charter and that the common law principles that permit the injunction infringed on such a right. 629 Ibid at 599. The judiciary is not expressly referred to in s. 32 as a branch of government to which the Charter applies, leaving open the possibility of different treatment of the judicial versus the legislative and executive/administrative branches of government. For a critique of the Court?s reasoning in Dolphin Delivery and subsequent cases, see Section 5.1) 117 act of government is relied upon to support the action, ?the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution?.630 In reaching the conclusion that the Charter does not apply directly to the common law, the Court was concerned that a definition of governmental action that included the common law (or court orders based on common law) would widen the scope of Charter application to include virtually all private litigation, and thus all private action.631 The Court also noted that the courts? involvement in private litigation is not as a ?contending? party, but a neutral arbiter.632 The Dolphin Delivery decision was widely criticized, particularly for its differential treatment of common law and statute law.633 There was some suggestion in subsequent cases that the Court may revise the direction given in Dolphin Delivery. For example, in Dagenais v Canadian Broadcasting Corp. [Dagenais],634 the Court applied a proportionality analysis to a judge?s common law-based discretionary publication ban order. All justices agreed that the 630 Ibid at 603. 631 Ibid at 600. The Court explained (at 600): While in political science terms it is probably acceptable to treat the courts as one of the three fundamental branches of Government, that is, legislative, executive, and judicial, I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. This is not to say that the courts are not bound by the Charter. The courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute. 632 Ibid. 633 See June Ross, ?The Common Law of Defamation Fails to Enter the Age of the Charter? (1996) 35 Alta L Rev 117 at 126; Boivin, supra note 604 at 272?280; Brian Slattery, ?The Charter?s Relevance to Private Litigation: Does Dolphin Deliver?? (1986) 32 McGill LJ 905; Peter W Hogg, ?The Dolphin Delivery Case: The Application of the Charter to Private Action? (1986) 51 Sask L Rev 273 at 275; Robin Elliot, ?Scope of the Charter?s Application? (1993) 15 Advoc Q 204 at 210?211, 214. See also R v Swain,  1 SCR 933. In R v Swain, the majority interpreted Dolphin Delivery as holding that the Charter applies to common law rules in cases where the Charter is generally applicable to the litigation in question (within the meaning of s. 32) and, ?if a common law rule is inconsistent with the provisions of the Constitution, it is, to the extent of the inconsistency, of no force or effect (s. 52(1))?: Ibid at 968. The Court found that the challenged common law rule (permitting the Crown to adduce evidence of an accused?s insanity) violated s. 7 of the Charter. While the Court undertook a s. 1 Oakes test analysis, it observed that the Oakes test may not always provide the appropriate framework by which to evaluate the justifications for maintaining a common law rule. Rather, it may be appropriate to consider whether an alternative common law rule could be fashioned which would not be contrary to the principles of fundamental justice (at 978-979). In particular,?[g]iven that the common law rule was fashioned by judges and not by Parliament or a legislature, judicial deference to elected bodies is not an issue? (at 978). 634 Dagenais, supra note 279. 118 Charter should apply, although for different reasons.635 Lamer CJC (for the majority on this issue) held that a judge?s discretion to order a publication ban was subject to the Slaight principle, and must be ?exercised within the boundaries set by the principles of the Charter?.636 If the common law rule conflicted unduly with Charter values, the common law rule must be varied. The majority did not adopt a formal s. 1 analysis, but held that the approach taken ?clearly reflects the substance of the Oakes test applicable when assessing legislation under s. 1 of the Charter?,637 and considered both the objective of the common law rule of a publication ban and the proportionality of the ban?s effect on protected Charter rights. However, in Hill v Church of Scientology [Hill],638 the Court reconfirmed the rule laid down in Dolphin Delivery and rejected the use of the s. 1 Oakes framework in developing the common law.639 The Court held that, in private litigation, a different approach is called for and ?[i]t is important not to import into private litigation the analysis which applies in cases involving government action?.640 This approach, the ?constitutional values? test, requires the 635 McLachlin J, in a concurring judgment, criticized the majority approach to the application of the Charter for implicitly overruling Dolphin Delivery. She agreed that the Charter should apply, but limited its application to the criminal context: Ibid at 944. La Forest J (dissenting on other grounds) that the case was distinguishable from Dolphin Delivery and the order reviewable under the Charter because it was ?exercised pursuant to a discretionary power directed at a governmental purpose, i.e., ensuring a fair trial?: Ibid at 893. Likewise, Gonthier J (dissenting on other grounds) concluded that the order was subject to the Charter because it dealt with the determination of the rights of accused persons in criminal matters: Ibid at 918. L?Heureux-Dub? J (dissenting) concluded that, while this was not a case in which the Charter should be applied to the court order, ?the common law governing its issuance is subject to Charter scrutiny?: Ibid at 912. 636 The case involved a challenge to a publication ban, granted in an effort to protect the right to a fair trial of criminal charges. 637 Dagenais, supra note 279 at 878. 638 Hill v Church of Scientology of Toronto,  2 SCR 1130. 639 The Court explained that ?[t]his obligation is simply a manifestation of the inherent jurisdiction of the courts to modify or extend the common law in order to comply with prevailing social conditions and values?: Ibid at para 91. The Court rejected the defendants? argument that the common law of defamation unreasonably restricted their right to free expression, and stated (at para 95): The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values. Care must be taken not to expand the application of the Charter beyond that established by s. 32(1), either by creating new causes of action or by subjecting all court orders to Charter scrutiny. 640 Ibid at para 93. 119 court to determine whether the common law ?strikes an appropriate balance? between the relevant values (in libel cases, the values of reputation and freedom of expression).641 The Court elaborated on the distinction between application of the Charter to governmental action and development of the common law in accordance with Charter values, identifying three ways in which the process of considering ?Charter values? differs from applying ?Charter rights?.642 Firstly, the courts are cautious when amending the common law generally, ?[f]ar-reaching changes to the common law must be left to the legislature?, and courts ?must not go further than is necessary when taking Charter values into account?.643 Secondly, the balancing approach must be more flexible than under a traditional s. 1 analysis because ?the Charter ?challenge? in a case involving private litigants does not allege the violation of a Charter right?.644 Instead, the challenge ?addresses a conflict between principles?, so Charter values ?should be weighed against the principles which underlie the common law?.645 Thirdly, the Court noted that ?the division of onus which normally operates in a Charter challenge? was not appropriate for private litigation under the common law, as the party seeking to change the common law should not be allowed to benefit from a reverse onus.646 The party challenging the common law must therefore bear the burden of proving 641 Ibid at para 100. The Court?s analysis considered that, although the law of defamation has an impact on freedom of expression, defamatory speech is ?very tenuously related?, if not detrimental, to the core values which underlie s. 2(b) of the Charter: Ibid at para 106. On the other hand, ?[a]lthough it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights?, and thus ?the protection of the good reputation of an individual is of fundamental importance to our democratic society?: Ibid at para 120. The Court concluded that the common law of defamation complies with the underlying values of the Charter and there is no need to amend or alter it: Ibid at para 141. 642 See Ross, supra note 633 at 128?129. 643 Hill v Church of Scientology of Toronto, supra note 638 at para 96. 644 The Court stated that the party challenging the common law ?cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not exist in the absence of state action. The most that the private litigant can do is argue that the common law is inconsistent with Charter values.?: Ibid at para 95. 645 Ibid at para 97. 646 Ibid at para 98. The Court explained that, where two private parties are involved in a civil suit, one party ?will have brought the action on the basis of the prevailing common law which may have a long history of acceptance in the community. That party should be able to rely upon that law and should not be placed in the position of 120 both that the common law is inconsistent with Charter values and that its provisions cannot be justified.647 Despite the Court?s rejection of the direct application of the Charter to the common law, and rejection of the Oakes test in favour of a ?balancing? approach, this approach does bear some resemblance to the Oakes proportionality analysis. For example, in RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd., the Court said the appropriate question was ?which approach [to regulating secondary picketing] best balances the interests at stake in a way that conforms to the fundamental values reflected in the Charter??648 The Court held that, while s. 2 (b) of the Charter was not directly implicated in that case, the right to free expression that it enshrines is a fundamental Canadian value and the development of the common law must therefore reflect this value, including that freedom of expression must be protected unless its curtailment is justified.649 Limitations on freedom of expression are permitted ?only to the extent that this is shown to be reasonable and demonstrably necessary in a free and democratic society?.650 The Court went on to consider whether the limit on freedom of expression was justified in that case, concluding that the preferred common law rule ?offers a rational test ? not an arbitrary one?,651 and that no more restrictive a rule was necessary.652 having to defend it. It is up to the party challenging the common law to bear the burden of proving not only that the common law is inconsistent with Charter values but also that its provisions cannot be justified.? 647 Ibid. 648 RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd.,  1 SCR 8 at para 65. 649 Ibid at paras 36?37, 67. The Court noted that freedom of expression is not absolute, so when the harm of expression outweighs its benefit, the expression may legitimately be curtailed. Thus, s. 2(b) of the Charter is subject to justificative limits under s. 1 (see para 36). The same applies in interpreting the common law to reflect the Charter: the Court noted that ?if we are to be true to the values expressed in the Charter our statement of the common law must start with the proposition that free expression is protected unless its curtailment is justified? (at para 67). 650 Ibid at para 37. 651 Ibid at para 76. 652 Ibid at para 92. In summary, a wrongful action approach to picketing allows for a proper balance between traditional common law rights and Charter values (at para 74). 121 In Grant v Torstar Corp.,653 the Court concluded that the common law defences to the offence of defamation did not give adequate weight to the constitutional value of free expression and, ?[w]hen proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences?.654 The Court outlined relevant factors that may aid in determining whether a defamatory communication on a matter of public interest was responsibly made, some of which echo the Oakes test. The Court held that the ?logic of proportionality dictates that the degree of diligence required in verifying the allegation should increase in proportion to the seriousness of its potential effects on the person defamed?,655 as it also should where the public importance of a subject matter is especially high.656 184.108.40.206 The ?constitutional values? test As the jurisprudence above illustrates, the ?constitutional values? test requires the court to determine whether the common law strikes ?an appropriate balance? between the relevant Charter values.657 This approach reflects a concern about the institutional role of the courts in relation to the legislature, in particular that it is the legislature?s role to make major 653 Grant v Torstar Corp., 2009 SCC 61. In this case, the Court relied on Charter values in introducing a new defence of responsible communication on matters of public interest to the law of defamation. 654 Ibid at para 65. Abella J dissented on the question of whether the defence should be left to the jury. In her view, weighing often competing constitutional interests is a legal determination so is a determination that the judge should undertake (at para 143). 655 Ibid at para 111. 656 Ibid at para 112. See also R v National Post, 2010 SCC 16, in which National Post asked that the Court quash a general warrant and assistance order issued against them because it infringed their freedom of expression under s. 2(b) of the Charter. The Court held that a judicial order to compel disclosure of a secret source would not in general violate s. 2(b) (at para 41) but a privilege could be found, on a case-by-case basis, where several criteria (known generally as the Wigmore criteria) were met. Underlying the fourth Wigmore criterion analysis ?is the need to achieve proportionality in striking a balance among the competing interests? (at paras 58-59). 657 Hill v Church of Scientology of Toronto, supra note 638 at para 100. The Court?s analysis considered that, although the law of defamation has an impact on freedom of expression, defamatory speech is ?very tenuously related?, if not detrimental, to the core values which underlie s. 2(b) of the Charter: Ibid at para 106. On the other hand, ?[a]lthough it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights?, and thus ?the protection of the good reputation of an individual is of fundamental importance to our democratic society? (at para 120). The Court concluded that the common law of defamation complies with the underlying values of the Charter and there is no need to amend or alter it (at para 141). 122 amendments to the common law.658 It takes a more flexible balancing approach to weighing Charter values than the s. 1 Oakes test, and rejects an approach that would place the burden of justifying the common law on either the opposing party or the courts. In undertaking the ?constitutional values? test, the Court has at times considered the rationality of the common law rule, and whether the rule is no more restrictive than necessary.659 However, the test lacks the structured nature of the Oakes framework, and the courts take varying approaches to determine whether the common law strikes the ?appropriate balance?.660 3.4.5 Similarities and differences to previous approaches In Dor?, the Court indicates that ?[t]he notion of deference in administrative law should no more be a barrier to effective Charter protection than the margin of appreciation is when we apply a full s. 1 analysis?.661 Further:662 In assessing whether a law violates the Charter, we are balancing the government?s pressing and substantial objectives against the extent to which they interfere with the Charter right at issue. If the law interferes with the right no more than is reasonably necessary to achieve the objectives, it will be found to be proportionate, and, therefore, a reasonable limit under s. 1. In assessing whether an adjudicated decision violates the Charter, however, we are engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right. In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited. In this paragraph, the Court appears to suggest that the Dor? ?proportionate balancing? approach is similar to the s. 1 Oakes test. Nonetheless, the Court explicitly rejects the Oakes test as the methodological approach for review of rights-limiting administrative decisions and implies that an approach akin to the common law ?balancing Charter values? approach is to 658 Hill v Church of Scientology of Toronto, supra note 638 at para 96. 659 RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd., supra note 648 at paras 76, 92. 660 Ross, supra note 633 at 132. 661 Dor?, supra note 11 at para 5. 662 Ibid at para 6. 123 be adopted.663 The following subsections explore the differences (and similarities) in the approach taken in Dor?, the Oakes test, and the common law balancing approach. 220.127.116.11 Nature of the proportionality analysis There is a distinction between proportionality as a standard for decisions (that is, as a requirement placed on the original decision-maker) and proportionality as a standard of review (that is, as a methodology used by the reviewing court).664 The Dor? approach, while rejecting the Oakes test as a requirement for either standard, seems to conflate these two standards and refers to proportionality as both a standard of review and standard for decisions. Some members of the Court had previously expressed concern that the Oakes test should not be used as a standard for discretionary decisions, suggesting that such a test would make decision-making unduly formalistic.665 However, in Dor?, decision-makers are directed to undertake a ?proportionality exercise? and ?balance the severity of the interference of the Charter protection with the statutory objectives? (rather than apply an Oakes test analysis).666 On reviewing such decisions, courts must ensure the decision reflects a ?proportionate balancing? of the Charter protections with the statutory objectives.667 This approach may be contrasted with that taken by the House of Lords (now the Supreme Court of the United Kingdom). The United Kingdom?s highest court has held that the process by which the rights-infringing decision was reached should not be an issue when considering whether an individual?s rights have been violated but rather the focus should be on whether the decision itself complies with 663 Ibid at paras 36?42. 664 Baker, supra note 26 at 245. 665 See Multani, supra note 7 at para 120, Deschamps and Abella JJ. ?To suggest that the decisions of administrative bodies must be justifiable under the Oakes test implies that the decision makers in question must incorporate this analysis into their decision-making process. This requirement makes the decision-making process formalistic and distracts the reviewing court from the objective of the analysis, which relates instead to the substance of the decision and consists of determining whether it is correct [as in Trinity Western] or reasonable (Chamberlain).? 666 Dor?, supra note 11 at para 56. 667 Ibid at paras 57?58. 124 the Human Rights Act.668 Contrastingly, the Dor? approach requires that decision-makers undertake some form of proportionality analysis. While the Court rejected the Oakes test in Dor?, the decision seems to imply that the analysis should consider more than just whether the decision has a disproportionate effect, given the direction that courts should consider whether a ?proportionate balance? has been struck and the suggestion that there is ?conceptual harmony? between this approach and the Oakes framework.669 The following sections explore what this proportionality requirement may mean when the courts are reviewing an administrative decision on a reasonableness standard of review. 18.104.22.168 Proportionality and reasonableness Much has changed in Canadian administrative law since Dickson CJC?s comments in Slaight that patent unreasonableness review rested ?to a large extent on unarticulated and undeveloped values?.670 In Dunsmuir, the Court offered a much richer conception of reasonableness review.671 The Court?s recent jurisprudence elucidating the content of the reasonableness standard makes clear that a reviewing court must examine both the reasoning process and the outcome reached when determining whether an administrative tribunal?s 668 Begum, R (on the application of) v Denbigh High School,  UKHL 15. The review considers whether the administrative decision was a proportionate limit on the individual?s right and, while it does not undertake a review of the merits of the decision (see para 30), the court does ask whether the decision was proportionate rather than just whether the decision-maker reasonably performed a proportionality analysis or whether the decision was substantively reasonable: Ibid at para 30. See Baker, supra note 26 at 277. 669 Dor?, supra note 11 at para 57. 670 Slaight, supra note 7 at 1049. At the time Slaight was issued, the standard of review was whether administrative action was ?so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?: C.U.P.E. v N.B. Liquor Corporation, supra note 381 at 237. 671 See above, Section 1.2.1. In Dunsmuir, the Court stated that deference ?does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations?: Dunsmuir, supra note 10 at para 48. 125 decision is reasonable.672 Further, the notion of ?reasonableness? has many varieties depending on the context in which the decision was made.673 On one end of the spectrum is reasonableness as defined by the United Kingdom?s highest court in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [Wednesbury], that is, a decision is unreasonable only if it is ?so absurd that no sensible person could ever dream that it lay within the powers of the authority?.674 This ?Wednesbury unreasonableness? was later articulated as a decision ?so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.?675 Clearly, this brand of reasonableness analysis is quite different from an Oakes-style proportionality analysis, given that it rejects any reweighing of the factors the decision is based upon, is not structured, and does not require assessment of the analytical steps of rational connection, minimal impairment, and proportionate effect.676 Given the difficulty conceiving of a proportionality analysis that does not inquire into the appropriate weighting of the Charter right against other interests, Dor? must be taken to have rejected Wednesbury-style unreasonableness as the standard of review for rights-limiting administrative decisions. At the other end of the spectrum, is reasonableness ?in the strong sense?,677 requiring identification of the relevant considerations and balancing of those considerations in 672 As noted by the majority in Dunsmuir, ?[a] court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.?: Ibid at para 47. Similarly, in Newfoundland Nurses, the Court held that ?the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes?: Newfoundland Nurses, supra note 49 at para 14. 673 Catalyst Paper, supra note 486 at para 18. See also Barak, supra note 70 at 374; Bobek, supra note 484. 674 Associated Provincial Picture Houses Ltd v Wednesbury Corporation,  KB 223 at 229. 675 Council of Civil Service Unions v Minister for the Civil Service, 1985 AC 374 (UKHL) at 410, Lord Diplock. 676 Barak, supra note 70 at 375. 677 Wojciech Sadurski, ?Reasonableness and Value Pluralism in Law and Politics? in Reasonableness and Law (Dordrecht; New York: Springer, 2009) 129. 126 accordance with their weight.678 In this sense, a decision is reasonable if it properly balances the relevant factors. Under this conception of reasonableness, it could also be argued that a decision is unreasonable if no rational connection exists between the purported objective of the decision and the means chosen to advance that objective, or if there are other means that could advance that objective (to the same extent) while being less restrictive to the constitutional right.679 In this way, reasonableness review may be seen as a form of proportionality analysis, ensuring that decisions are the result of ?a proper balance between conflicting considerations and reflect an appropriate means-ends rationality?.680 There are also different forms of proportionality analysis (as noted in the previous section), and these forms of proportionality can be applied with varying degrees of deference. This distinction has been explored in the United Kingdom jurisprudence where, although a proportionality test has now replaced Wednesbury unreasonableness in cases involving the Human Rights Act and Convention rights, the courts still struggle with the relationship between these standards of review, and whether the courts should apply a reasonableness or correctness approach to the proportionality question.681 Proportionality may be conceived of as just another version of unreasonableness (?reasonableness-conception?) or alternatively as a way for judges to provide the ?correct? answer (the ?correctness-conception?).682 Both conceptions are evident in the UK jurisprudence. Views on proportionality vary, with some judges concluding that proportionality review is more intensive than Wednesbury unreasonableness review,683 and pointing out that proportionality and Wednesbury 678 See Barak, supra note 70 at 374. 679 Ibid at 377. 680 Cohen-Eliya & Porat, supra note 70 at 481. 681 Ian Leigh & Roger Masterman, Making Rights Real: the Human Rights Act in its First Decade, Human rights law in perspective v. 15 (Oxford??; Portland: Hart, 2008) at 149. 682 Rivers, supra note 121 at 192?193. 683 See R v Secretary of State For The Home Department, Ex Parte Daly,  UKHL 26 at para 27, Lord Steyn; para 30, Lord Cooke of Thorndon. Under proportionality, the criteria deployed are ?more precise and more sophisticated?, so ?the intensity of review is somewhat greater?: proportionality ?may require the reviewing 127 unreasonableness do not always yield the same result.684 Others have concluded that proportionality adds little to the concept of unreasonableness.685 As a result, the courts have at times held that administrative actions alleged to contravene a Convention right, or a common law fundamental right, are reviewed according to a correctness standard.686 However, other decisions appear to prefer the reasonableness-conception of proportionality, emphasizing respect for the views of the original decision-maker.687 It should be noted, however, that the proportionality approach is also not a full ?merits review? in which the courts substitute their view of the correct decision for that of the primary decision-maker. In judicial review, judges do not have a primary responsibility but rather ?a secondary responsibility to ensure that the primary decision-maker has acted in accordance with the requirements of legality?.688 As noted above (see Section 22.214.171.124), the courts show deference when applying a reasonableness standard of review or a proportionality analysis. The key difference between proportionality (in the Oakes test form) and reasonableness (in a form that does not adopt a structured proportionality test) is that a proportionality review provides a structured framework that encourages more stringent judicial review for rationality. In Dor?, the Court takes a very deferential view of the proportionality analysis to be applied, court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions? and ?may go further ... inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations? (at para 27, Lord Steyn). Their Lordships applied a proportionality test (in all but name) in holding that the infringement of a claimant?s common law right to the confidentiality of his privileged legal correspondence was unlawful (for example, Lord Bingham concluded: ?the policy provides for a degree of intrusion into the privileged legal correspondence of prisoners which is greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners?: at para 21). 684 R (Association of British Civilian Internees, Far East Region) v Secretary of State for Defence, 2003 EWCA Civ 473 (UKCA). 685 R (Alconbury) v Secretary of State for the Environment,  UKHL 23 at para 51. 686 Daly, supra note 683; Huang v Secretary of State for the Home Department,  UKHL 11; Quila & Ors v Secretary of State for the Home Department & Ors, 2010 EWCA Civ 1482 (UKCA) at paras 50?62. 687 See Belfast City Council v Miss Behavin? Ltd (Northern Ireland),  UKHL 19; Begum, R (on the application of) v Denbigh High School, supra note 668. Other examples are set out at William Wade & C F Forsyth, Administrative Law, 10th ed (Oxford??; New York: Oxford University Press, 2009) at 310?312. 688 Murray Hunt, ?Sovereignty?s Blight: Why Contemporary Public Law Needs the Concept of ?Due Deference?? in Nicholas Bamforth & Peter Leyland, eds, Public law in a Multi-layered Constitution (Oxford; Portland, Or: Hart, 2003) 337 at 342. 128 that is, that a rights-limiting measure is proportionate if it falls ?within a range of reasonable alternatives?.689 The primary way to show that a proportionality analysis has been properly undertaken is through the provision of adequate reasons or justification for the decision.690 126.96.36.199 Reasons and justification for decisions As outlined above (see Section 1.2.1 and 188.8.131.52.3), the idea of a culture of justification as a characteristic of the rule of law underlies the Court?s approach to judicial review of administrative decisions. The Court has recognized that ?deference under the reasonableness standard is best given effect when administrative decision makers provide intelligible and transparent justification for their decisions, and when courts ground their review of the decision in the reasons provided?.691 Therefore it would seem that there should be some obligation on the decision-maker who has made a decision impacting on Charter guarantees to justify his or her decision through the provision of reasons. Yet the Dor? decision suggests only a minimal reason-giving requirement, given that the Court accepted that it was sufficient that the Disciplinary Council had been ?conscious? of the fact that their decision may constitute a restriction on the lawyer?s expressive rights. The Court also rejected the idea that the administrative decision-maker should bear the burden of justifying his or her decision as proportional to its objective. 184.108.40.206 Balancing Charter values The Court suggested that the approach adopted in Dor? is similar to that taken in cases where the Court has ?balanced? values and statutory objectives when reviewing administrative decisions.692 The Court pointed to Chamberlain, in which the majority held that the school board had failed to respect the ?values of accommodation, tolerance and respect for diversity? 689 Dor?, supra note 11 at para 56. 690 Liston, supra note 23 at 80. 691 Alberta Teachers? Association, supra note 43 at para 54. 692 Dor?, supra note 11 at paras 49?50, 55. 129 which were incorporated into its enabling legislation and ?reflected in our Constitution?s commitment to equality and minority rights?.693 However, that case sheds little light on the Court?s approach to the constitutionality of administrative decisions, given the conclusion that the board?s decision was unreasonable because the board had failed to act in accordance with its enabling legislation. In light of this conclusion, the Court held that it was not necessary to consider the constitutionality of the board?s decision.694 It may be that, similarly to the majority?s judgment in Trinity Western,695 the decision-maker would have been held to have erred by not taking into account the impact of its decision on the Charter right or freedom. A failure to consider a relevant Charter value thus constitutes an unreasonable decision. The Court also points to Pinet,696 in which the Court applied a reasonableness standard when reviewing a decision of the Ontario Review Board for compliance with s. 7 of the Charter. The Pinet case shows how the Court may interpret the administrative decision-maker?s enabling statute to ensure a Charter-consistent interpretation, and thereby conclude that the discretionary decision is unreasonable in light of that interpretation. The Court stated that it was required to consider ?whether the Ontario Review Board struck an appropriate balance between the twin goals of public safety and the needs of an accused who has been found not criminally responsible (?NCR?) by reason of mental disorder?.697 Given that a proper interpretation of the Review Board?s enabling legislation required that the decision was ?the least onerous and least restrictive? of the appellant?s liberty interests,698 the Board must make its decision with the s. 7 rights of the detainee as ?a major preoccupation?.699 The Court 693 Chamberlain, supra note 9 at para 21. 694 Ibid at para 73. 695 Trinity Western, supra note 9 at para 43. 696 Pinet, supra note 9. 697 Ibid at para 1. 698 Ibid at paras 19?23. See also Penetanguishene Mental Health Centre v Ontario (Attorney General), 2004 SCC 20. 699 Dor?, supra note 11 at para 55. Citing Pinet, supra note 9 at para 19. 130 concluded that the Review Board had not given sufficient weight to the appellant?s liberty interests, as nowhere in the Review Board?s reasons was there any reference to the ?least onerous and least restrictive? requirement in relation to the conditions of its disposition and nor was there any consideration of the appellant?s liberty interests.700 In Dor?, the Court suggested that the goals of public safety and fair treatment grounded the assessment of whether an infringement of an individual?s liberty interest was justified.701 The analysis in Lake appears to be the type of framework the Court envisions adopting through the Dor? approach. The Court suggested that, in Lake, ?the importance of Canada?s international obligations, its relationships with foreign governments, and the investigation, prosecution and suppression of international crime justified the prima facie infringement of mobility rights under s. 6(1)?.702 In Lake, the Court held that, while the reviewing court owes deference to the Minister?s decision ?including the Minister?s assessment of the individual?s Charter rights?,703 the Minister must apply the ?proper legal principles? and carry out the ?proper analysis?.704 The Court had previously held that, while extradition constitutes a prima facie infringement of a Canadian citizen?s mobility rights under s. 6(1) of the Charter, that infringement can be justified under s. 1 by considering certain factors (the Cotroni factors).705 On judicial review, the court must determine whether the Minister carried out the proper analysis (based on the Cotroni factors), considered the relevant facts, and reached a defensible conclusion based on those facts.706 The reviewing court must determine whether the Minister?s decision falls within a range of reasonable outcomes (but must not re-assess the 700 Pinet, supra note 9 at para 49. 701 Ibid at para 19. 702 Dor?, supra note 11 at para 55. Citing Lake, supra note 9 at para 27. 703 Lake, supra note 9 at para 49. 704 Ibid at paras 41, 49. 705 See United States of America v Cotroni; United States of America v El Zein,  1 SCR 1469. 706 Lake, supra note 9 at para 41. 131 relevant factors and substitute its own view).707 In terms of the reasons required for the decision, the Court held that the Minister is not required to provide a detailed analysis for every factor.708 The Court has been clear that courts reviewing discretionary decisions on a reasonableness standard of review must not engage in a new weighing process.709 The Court has reaffirmed this position in recent cases.710 Courts must avoid second-guessing administrative decision-makers with respect to the weight or priority they assign to competing factors of relevance to their decision.711 Courts may, however, ensure that only relevant considerations have been taken into account, and ensure that decision-makers were ?alert? and ?sensitive? to the range of legal considerations in play and the weight of considerations that are of clear legal importance.712 As the Court stated in Dor?, the administrative decision-maker must ?demonstrate that they have given due regard to the importance of the [Charter rights] at issue?.713 The Court?s direction that the administrative decision must reflect a ?proportionate balancing? of the Charter rights and values at play and the statutory objectives,714 and that the reasonableness analysis centres on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory 707 Ibid. 708 Ibid at para 46. 709 While the courts may ensure that relevant considerations were taken into account by the decision-maker, they must not inquire into the relative weight assigned to the various factors or how those factors were balanced: see Maple Lodge Farms v Government of Canada, supra note 509 at 7?8. 710 See, for example, Suresh, supra note 258 at para 37; Lake, supra note 9 at para 41; Khosa, supra note 390 at para 149. 711 See Suresh, supra note 258 at para 37. 712 See Baker, supra note 9 at para 75. See also Ibid at para 65; N?meth v Canada (Justice), 2010 SCC 56 at para 58. 713 Dor?, supra note 11 at para 66. 714 Ibid at para 35. 132 objectives,715 suggests that the reviewing court must be satisfied to some degree that the ?proper?716 balance has been achieved. 220.127.116.11 Assessing the ?proper? balance The Court in Dor? indicates that the decision-maker is not required to undertake any equivalent of the first step of the Oakes test (justifying the importance of the objective). Thus it appears that the court is not required to scrutinize the first step of the Oakes test (justifying the importance of the objective). However, given that the Dor? approach requires identification of the statutory objective and a balancing of that objective against the relevant Charter value, it is difficult to see how the courts could avoid enquiring into the importance of the objective. Additionally, as the definition of the objective impacts significantly on the rest of the analysis,717 a decision relying on a minimally important statutory objective should fail when the proportionality balancing exercise is undertaken.718 Further, if the statutory objective was thought to be insufficiently important, the enabling statute would be open to challenge for breaching the Charter. LeBel J suggested this was the case in Multani, stating that when applying s. 1 of the Charter to an administrative decision where the statutory authority for the decision is not itself challenged it would be ?pointless to review the objectives of the act?.719 Therefore the fact that the Court did not adopt the first step of the Oakes test is likely to be immaterial. 715 Ibid at para 7. 716 See Ibid at para 58. 717 See Barak, supra note 550 at 371?372. 718 This is a similar approach as is taken by the Court in relation to the ?principles of fundamental justice? analysis. As Hamish Stewart points out, the doctrines applied in the principles of fundamental justice analysis are intended to address ?failures of instrumental rationality?, meaning that the Court accepts the legislative objective but scrutinizes the legislation enacted as the means to achieve the objective. If the legislation is not a rational means to achieve the objective, then the law fails in terms of its own objective: Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms, Essentials of Canadian Law (Toronto: Irwin Law, 2012) at 151. 719 Multani, supra note 7 at para 155. 133 In terms of the proportionality analysis part of the Oakes test, the Court does suggest that some form of minimal impairment review must be undertaken. The Court stated that the Dor? analysis will ensure that the decision interferes with the relevant Charter guarantee ?no more than is necessary given the statutory objectives?.720 The Court therefore appears to adopt LeBel J?s Multani approach, which is that the issue ?becomes one of proportionality or, more specifically, minimal limitation of the guaranteed right, having regard to the context in which the right has been infringed?.721 However, although this suggests that a different approach should be taken than the usual administrative law reasonableness review, the Court?s decision in fact contains no minimal impairment review in terms of considering whether a formal reprimand in Mr. Dor??s case was in fact necessary to achieve the statutory objectives. 3.4.6 Conclusion: A new proportionality test? The Oakes test is intended to impose a stringent standard of justification on government to reflect the commitment to uphold the rights and freedoms set out in the Charter.722 The Dor? approach rejects the Oakes proportionality test as the method of analysis for reviewing administrative action limiting a protected right or freedom. As the above analysis shows, given the lack of clear guidance provided by the Court in Dor? about the methodology the courts should use to assess the ?reasonable?, ?proportionate?, ?proper? balance, it is difficult to assess how the courts will now review a discretionary administrative decision that appears to infringe on Charter guarantees. Some conclusions can be deduced as to what the Dor? approach requires, however. While a structured proportionality analysis is not required of the decision-maker or the reviewing court, the decision-maker must have turned his or her mind to the relevant Charter 720 Dor?, supra note 11 at para 7. 721 Multani, supra note 7 at para 155. 722 Oakes, supra note 8 at 136. 134 values. As the above analysis suggests, reasonableness in the context of reviewing rights-limiting decisions may be interpreted in a strong sense, as requiring the court to assess whether the decision-maker has properly balanced the relevant factors. However, given the Court?s rejection of re-weighing when conducting reasonableness review, and the minimal reason-giving requirement placed on administrative decision-makers, the Dor? decision does not appear to call for such an approach. Instead, Dor? merely requires that the decision-maker has considered (or was ?conscious? of) the rights-limiting nature of his or her decision. The Dor? approach bears more similarity to the more flexible balancing approach taken be the Court in applying Charter values to the common law, and appears to refer to proportionality in the sense of a ?fair balance?. This approach therefore seems to be less rigorous than the Oakes test at least with regard to the justification or reasons required of the government actor. The following chapter explores this and other potential implications of the Dor? approach. 135 4 POTENTIAL ISSUES WITH THE DOR? APPROACH Chapter 4 explores the implications of the approach set out in Dor?, particularly its impact on the protection of Charter guarantees and rule of law concerns. It also addresses the conceptual coherence of the Dor? approach. I suggest that, although the Dor? decision goes some way towards a coherent approach to integrating Charter and administrative law principles, it ultimately fails to provide a coherent framework for resolving the conflict between the administrative law principle of deference with the supremacy and fundamental nature of the Charter. The lack of guidance from the Court in Dor? on the methodology courts should apply when reviewing rights-limiting administrative decisions raises a number of questions and uncertainties about how the approach outlined by the Court will impact on the protection of Charter guarantees. While the Dor? approach fits within the general trend in recent jurisprudence of recognizing administrative bodies? expertise and important institutional role, it also raises concerns that protection of Charter rights will be weakened due to the ability of administrative decision-makers to justify their rights-infringing decisions through a less-rigorous analysis than the courts apply to a law. Further, given the Court?s adoption of a reasonableness standard and the rejection of a structured proportionality analysis, it is questionable whether the Dor? approach will ensure adequate justification for decisions impacting on Charter values.723 The Court?s reliance on a categorical distinction between law and discretion raises rule of law concerns. The Dor? approach disregards the interconnectedness of law and discretion, risks an approach that ignores systemic flaws in the legislative scheme granting administrative discretion, and may create incentives to establish legislative schemes that grant broad and 723 See Wildeman, supra note 23 at 364?5, 378. 136 undefined discretion to administrative bodies. In this way, the Dor? approach does not address key rule of law concerns inherent in the exercise of discretion, such as the potential for arbitrariness, and lack of accessibility, predictability and precision in the law. Future cases will therefore have to deal with concerns about the constraints on decision-making made pursuant to broad grants of discretion within complex regulatory frameworks, as well as how to interpret the Dor? approach in a way that reflects the fundamental nature of Charter guarantees. The following sections consider the potentially problematic aspects of the Dor? approach that are most likely to create difficulties for future cases. This analysis is then drawn on in Chapter 5 to show why the courts should adopt a modified approach to the judicial review of rights-limiting administrative decisions. 4.1 Conceptual coherence Following Vancouver Transit, it was suggested that the Court had abandoned the search for conceptual coherence in favour of the predictability and simplicity of a categorical approach, and had yet to develop a workable and coherent approach to the relationship between the Charter and administrative law.724 The Dor? decision attempted to achieve a more coherent approach to the relationship between the Charter and administrative law by ?integrating Charter values into the administrative law approach?.725 In doing so, the Court rejected the suggestion of the majority in Multani that taking an administrative law approach would result in the fundamental values contained in the Charter being reduced to ?mere administrative law principles?.726 In some ways, the Dor? approach to the review of rights-limiting administrative decisions may be seen as an endorsement of the unity of public law thesis (see Section 2.1.1). 724 Gratton & Sossin, supra note 5 at 147, 163. 725 Dor?, supra note 11 at para 35. 726 Multani, supra note 7 at para 16. 137 The Dor? approach supports a substantive, value-laden role for administrative law, and draws on the shared fundamental values of administrative law and the Charter by recognizing that administrative discretion must be exercised in accordance with these fundamental values (including those guaranteed by the Charter). The Court recognized that the values set out in the Charter are not the only fundamental values constraining discretionary decisions, so this approach also upholds the unwritten values underlying administrative law (such as reasonableness and fairness).727 In its adoption of a reasonableness standard of review, and the resulting deference to the administrative decision, the Dor? approach also recognizes administrative decision-makers as having a legitimate role in articulating the fundamental values of society that are embodied in the Charter. However, other aspects of the Court?s decision do not further a coherent and unified framework for resolving the conceptual tensions in cases involving administrative law and the Charter. In particular, the Court?s determination to keep separate the methodological approaches taken in administrative law and that taken under the Charter suggests an understanding of administrative law and constitutional law approaches as being conceptually distinct. This view of administrative and constitutional law approaches as being ?conceptually distinct? was advocated for by the dissent in Multani, with Abella J suggesting that the constitutional justification of a Charter infringement is based on societal interests, rather than the needs of the individual parties.728 Abella J suggested that ?an administrative law analysis is microcosmic, whereas a constitutional law analysis is generally macrocosmic [and the] values involved may be different?.729 A micro/macro-cosmic distinction is one way of 727 See Dor?, supra note 11 at para 34. The Dor? approach also avoids concerns about the excessive ?constitutionalization? of administrative law, by ensuring courts draw upon administrative law jurisprudence as a source of guidance for administrative decision-making. A similar point is made by Evans (supra note 331 at 73). See also Blencoe v British Columbia (Human Rights Commission),  2 SCR 307 at para 189. 728 Multani, supra note 7 at para 132. 729 Ibid. 138 viewing cases involving administrative decisions versus those involving legislation. An administrative decision will generally have a direct impact on an individual whereas legislation generally applies to a sector of society or a number of individuals. However, challenges to administrative decisions will often have a much wider impact than just the outcome for the individual applicant. For example, Mr. Pinet?s challenge to a parole board?s decision on his case resulted in a direction from the Court about the primacy of liberty interests that most likely impacted on parole board decision-making across the nation.730 In Dor?, the Court suggested that this distinction is due to the fact that, with administrative decisions, Charter values are applied in relation to a particular set of facts, whereas, when a particular ?law? is being assessed for Charter compliance, ?we are dealing with principles of general application?.731 However, cases challenging legislation on the basis of inconsistency with the Charter invariably stem from an individual applicant (or group of individuals), and the impact of the legislation on the individual, and therefore consider the application of the Charter protections to those facts. Further, cases involving the impact of administrative decisions on Charter protections will frequently need to consider societal interests and the application of the Charter in a general sense. The distinction between a microcosmic and macrocosmic (or particular versus general) analysis also fails to take into account the large body of jurisprudence that focuses on the criminal justice system, the majority of which are ?microcosmic? cases yet the Court has carried out a full-fledged Charter 730 See Pinet, supra note 9. 731 Dor?, supra note 11 at para 36 (emphasis added). The concept of laws as rules of general application, contrasted with discretionary decisions as ad hoc decision-making, also influenced the dissent in Multani. Abella and Deschamps JJ advocated for a distinction between general norms and individualized decisions on the basis that an administrative decision is not a law or regulation but rather ?the result of a process provided for by statute and by the principles of administrative law in a given case? and ?[e]stablishing a norm and resolving a dispute are not usually considered equivalent processes?: Multani, supra note 7 at para 112. 139 review.732 The basis on which the Court distinguished the administrative law and constitutional law approaches is therefore dubious. 4.2 Justificatory standard for Charter infringements The Dor? approach also potentially disrespects the supremacy and fundamental nature of Charter guarantees by failing to ensure administrative decisions impacting on Charter guarantees are adequately justified. The introduction of the Charter enhanced the culture of justification in Canada.733 In particular, s. 1 and the Oakes framework, which places the justificatory onus on the government, is designed to ensure that any limitation on the Charter-guaranteed rights and freedoms is both ?reasonable? and ?demonstrably justified in a free and democratic society? (as required by s. 1 of the Charter). As outlined above,734 administrative law has also moved toward a conception of the rule of law based on a culture of justification under which an exercise of public power is only appropriate where it can be justified to citizens in terms of rationality and fairness. Accordingly, reasonableness review is said to be concerned with ?justification, transparency and intelligibility? within the decision-making process.735 However, I suggest that the justificatory standard applied in Dor? is deficient in several regards. Firstly, the Dor? approach relieves the party defending the decision impacting on Charter rights of the obligation to demonstrably justify the infringement.736 Secondly, the decision did not further a culture of justification as the Court did not require the administrative decision-maker to fully justify its decision and did not itself fully justify its conclusion that the limitation on Mr. Dor??s right to freedom of expression was reasonable. Thirdly, when 732 See, for example, R v Therens,  1 SCR 613; R v Hufsky,  1 SCR 621; R v Ladouceur,  1 SCR 1257; R v Suberu, 2009 SCC 33.. 733 McLachlin, supra note 399 at 178. 734 See Sections 1.2.1 and 18.104.22.168.3. 735 See Dunsmuir, supra note 10 at para 47. 736 Fox-Decent & Pless, supra note 6 at 437. 140 reviewing the decision in issue in Dor?, the Court failed to apply the proportionality test in a manner that ensures the transparency, intelligibility and justification of any limitation on Charter rights. 4.2.1 Burden of proof According to Charter jurisprudence considering s. 1, the burden of proving that an infringement of an individual?s Charter guarantee is justified rests on the party seeking to have that limitation upheld.737 This reflects the structure of s. 1, which provides that Charter rights and freedoms are guaranteed except where the infringement can be justified.738 The presumption is therefore that Charter rights are guaranteed ?unless the party invoking s. 1 can bring itself within the exceptional criteria which justify their being limited?.739 As the Court stated in Little Sisters, ?[i]t is not open to the state to put the onus on an individual to show why he or she should be allowed to exercise a Charter right?.740 Conversely, with the reasonableness standard of review in administrative law, the onus is on the individual seeking to challenge the decision to show that there is evidence that the discretion was abused such that the decision reached was unreasonable. In its adoption of an administrative approach based on reasonableness review, the Dor? decision therefore places the burden of proving that the ?proportionate balance? has not been struck on the individual alleging that his or her Charter rights have been infringed by an administrative decision.741 As noted above (see Section 22.214.171.124), the Court?s approach in Dor? appears to adopt Abella J?s suggestion in Multani that administrative bodies should not be treated as parties with an interest in a dispute.742 However, the Court did not clarify the conceptual difficulty it sees 737 Oakes, supra note 8 at 137. 738 Fox-Decent & Pless, supra note 6 at 434?435. 739 Oakes, supra note 8 at 137. 740 Little Sisters, supra note 262 at para 101. 741 See Liston, supra note 23 at 33. 742 Multani, supra note 7 at para 123. 141 with defining the ?pressing and substantial? objective of a decision. The Court also neglected to explain the difficulty it saw with who should have the burden of defining and defending the objective of a decision. Abella J was concerned that placing the burden of proof on administrative bodies, and requiring administrative bodies with quasi-judicial functions to adduce evidence to justify their decisions under s. 1, would undermine the administrative bodies? independence.743 I disagree. The concern about preserving administrative decision-makers? independence and impartiality is based on a conception of administrative decision-makers as adjudicators. Adjudicative decision-makers have traditionally only been granted limited standing in cases involving substantive challenges to their decisions.744 The rationale for this limitation is that adversarial participation of the tribunal (or tribunal counsel) discredits the impartiality of the administrative tribunal where the matter is referred back to it, or in future proceedings involving similar interests and issues or the same parties.745 This approach has been amended, however, to reflect the fact that administrative bodies are often in the best position to explain the reasonableness of their decisions given their specialized expertise.746 Recent cases have advocated for a contextual approach to assessing any concerns about tribunal impartiality, which takes into account the nature of the problem, the purpose of the legislation, the extent of the tribunal?s expertise, and the availability of another party able to knowledgeably respond to the attack on the tribunal?s decision.747 It is difficult to envisage how an administrative decision-maker?s independence or impartiality could be compromised through its adducing evidence to justify its Charter-infringing decision, at least without full consideration of the 743 Ibid at para 132. 744 See Northwestern Utilities Ltd. v Edmonton,  1 SCR 684; Henthorne v British Columbia Ferry Services Inc., 2011 BCSC 409. 745 Northwestern Utilities, supra note 744 at 709. 746 See Caimaw v Paccar of Canada Ltd.,  2 SCR 983; Children?s Lawyer for Ontario v Goodis,  OR (3d) 309 (ONCA). 747 Children?s Lawyer for Ontario v Goodis, supra note 746 at para 43. 142 type of decision-maker and the nature of the decision-making process. Indeed, in the Dor? case, the Barreau du Qu?bec was represented before the Supreme Court and presented argument that the sanction imposed on Mr. Dor? was not disproportionate.748 In Dor?, the Court also suggested that if the Oakes test was adopted it would be conceptually difficult to see who would have the burden of defining and defending the objective of the rights-limiting administrative decision.749 This may be a reason for not adopting the first limb of the Oakes test but does not shed any light on why administrative decision-makers should not bear the burden of proving their decisions are justified according to the Dor? standard of ?proportionate balancing?. Just because aspects of the Oakes test are poorly suited to the review of discretionary decision does not mean that the decision-maker should not bear the burden of proving that the decision reached is justifiable. The approach taken in Dor? places a significant evidential burden on the individual to prove that the decision-maker did not proportionately balance his or her rights with the statutory objectives. It is not clear how strong the evidentiary basis put forward by the applicant will need to be. However, applicants for review of discretionary decisions will often have difficulty accessing the kind of evidence required, particularly the complete or comprehensive reasons for the decision. The Court has held that Charter decisions ?should not and must not be made in a factual vacuum?, and cannot be based on ?the unsupported hypotheses of enthusiastic counsel?.750 This was relied upon in a recent Federal Court decision involving a challenge to an immigration officer?s decision refusing the individual?s 748 Counsel for the respondent Pierre Bernard, Assistant Syndic of the Barreau du Qu?bec, argued that the sanction imposed was not disproportionate because it was arrived at through a process of elimination, whereby other sanctions available (such as a fine) were not appropriate: see Gilles Dor? v. Pierre Bernard (in his capacity as Assistant Syndic of the Barreau du Qu?bec), et al. 33594, Webcast, online: Supreme Court of Canada <http://www.scc-csc.gc.ca/case-dossier/info/webcast-webdiffusion-eng.aspx?cas=33594> at minutes 165-166 and 172. 749 Dor?, supra note 11 at para 38. See also Ibid at para 4. 750 Mackay v Manitoba,  2 SCR 357 at 361?362. See also Oakes, supra note 8 at 137?138. 143 application for permanent residence on the grounds that the officer violated the applicant?s right to equality (guaranteed by s. 15(1) of the Charter) by not taking into account his American Sign Language test scores.751 In that case, the Court concluded that, given ?the factual pattern of this case and the lack of evidence adduced by the applicant with regard to the alleged violation of his s. 15 Charter right to equality, the Court must decline to address the Charter question raised by the applicant?.752 In order to counteract the arbitrariness or luck regarding applicants? access to the rationale underlying the decision,753 the courts have imposed a duty on administrative decision-makers to provide reasons for decisions in certain circumstances. The reasons provided must display a reasoned justification for the decision. Given the onus on an applicant to prove an unreasonable and disproportionate limitation on his or her Charter rights, however, it is questionable whether the Dor? approach to requiring such reasoned justification is sufficient. 4.2.2 Justification for the infringement The Court provided little explanation in Dor? of how the administrative decision-maker?s reasoning regarding the Charter value at issue was intelligible and justified.754 The Court merely noted that the Disciplinary Council was ?conscious? of the fact that the statutory provision under which it made its decision ?may constitute a restriction on a lawyer?s expressive rights?.755 The Court did not engage in any probing analysis of the extent to which the Council actually did consider Mr. Dor??s right to freedom of expression and the reasons 751 See Smirnov v Canada (Citizenship and Immigration), 2013 FC 554. The applicant also challenged the regulations under which the decision was made, on the basis that the law creates a distinction based on disability due to the requirement to speak and listen, such that no deaf person could ever succeed in obtaining permanent residency under the Canadian experience class. This challenge was also rejected. 752 Ibid at para 36. 753 Dyzenhaus, supra note 155 at 7. 754 See Dunsmuir, supra note 10 at para 47. 755 Dor?, supra note 11 at para 70. 144 why this infringement of this right was justified. Given the lack of reasons provided by the decision-maker, the Court could not engage in an evaluation of whether the reasons for the decision justified the conclusion reached, or follow the ?line of analysis? within the reasons that could reasonably have led the decision-maker from the evidence to the conclusion at which it arrived.756 The Court applied the proportionality analysis to the Disciplinary Council?s decision in a single paragraph, before concluding that the decision to issue a reprimand satisfied the proportionality criterion.757 This failure to fully engage with the rationale for the rights-limiting decision, and the failure to require the administrative decision-maker to fully justify its decision, does not promote a culture of justification in decision-making and may permit a box-ticking approach by decision-makers to the consideration of relevant Charter guarantees. The Court also failed to provide a full justification as to why it considered the Council?s decision was reasonable. The Court noted that a decision would be found to be reasonable if ?the decision-maker has properly balanced the relevant Charter value with the statutory objectives?.758 However, the Court?s conclusion that the decision ?cannot be said to represent an unreasonable balance of Mr. Dor??s expressive rights with the statutory objectives? is preceded by only a very brief outline of the Council?s reasoning, and a suggestion that Mr. Dor??s ?excessive degree of vituperation? warranted reprimand.759 The Court stated that the balance the Court must consider is ?the fundamental importance of open, and even forceful, criticism of our public institutions with the need to 756 See Law Society of New Brunswick v Ryan, supra note 393 at para 55; Dunsmuir, supra note 10 at para 47. 757 Dor?, supra note 11 at para 70. 758 Ibid at para 58 (emphasis added). It has been suggested that, with Dor?, the Court ?has unleashed a new set of possibilities for revisiting the weight accorded to competing legal values on reasonableness review?: Wildeman, supra note 23 at 349. 759 Dor?, supra note 11 at paras 68?71. 145 ensure civility in the profession?.760 However, the Court then suggested that all it was considering was whether the discipline (a reprimand) ?reflects a proportionate application of the statutory mandate with Mr. Dor??s expressive rights?.761 The Court did not explore the balance between freedom of expression (in the form of criticism of public institutions) and the objective of maintaining civility within the legal profession. Further, the Court did not consider the relevance of the private nature of Mr. Dor??s communication, the context in which the letter was written, or assess the appropriateness of alternative discipline options available in these circumstances. We can only speculate as to whether the result would have been different if the reasonableness of Mr. Dor??s 21-day suspension penalty had been before the Court,762 as the Court gave no indication as to whether that particular penalty would be considered disproportionate, or whether the Council?s awareness that this penalty would impinge upon Mr. Dor??s freedom of expression would have been sufficient to conclude that that decision was reasonable. Justification by the courts regarding the reasonableness of decisions that infringe on Charter rights or freedoms is particularly important given the constitutional guarantee that an individual?s Charter interests are subject only to reasonable and demonstrably justified limits.763 There is a danger that a general doctrine of deference may deflect judges from their responsibility for deciding a particular case on its own legal merits, or inappropriately deferring to the governmental actor?s interpretation or decision.764 It is inimical to the normative and institutional foundation of the Charter to unquestioningly defer to an administrative decision-maker?s own determination of whether his or her discretionary 760 Ibid at para 66. 761 Ibid at para 67. 762 Mr. Dor? did not appeal the 21-day suspension imposed by the Disciplinary Council, so the Court only considered the reasonableness of the Council?s conclusion that a reprimand was warranted: Ibid. 763 As required by Charter, supra note 1, s 1. For further discussion of this point, see Fox-Decent & Pless, supra note 6 at 434?435. 764 Allan, supra note 93; Allan, supra note 99 at 43. 146 decision violates an individual?s Charter rights.765 The special status given to the rights set out in the Charter by the Canadian people demands that the people be given the opportunity to know and judge the balancing struck between these rights and other interests. The judicial review process can (and should) provide this opportunity. Given this, the lack of transparency and justification in the Court?s reasons in Dor? for determining that the decision was reasonable and proportionate is troubling. Clear justification for judicial review decisions may also have important and far-reaching effects on the quality of administrative decision-making by providing guidance to future decision-makers. Justification by the judiciary is therefore important both for ensuring that judges reach transparent and logical decisions, and for providing guidance to administrative decision-makers interpreting the Charter in future decisions. The Court in Dor? thus failed to promote a culture of justification in decision-making, in that it did not require the administrative decision-maker to fully justify its decision and did not fully engage with, or explain the rationale for, the rights-limiting decision. This lack of justification was amplified by the Court?s rejection of a structured proportionality test or other methodology to ensure transparency, intelligibility and justification of any limitation on Charter rights. 4.2.3 Rejection of a structured proportionality test Proportionality may be viewed as essentially a requirement of justification.766 Judicial review for proportionality compels public authorities into a process of reasoned engagement,767 whereby governments are required to provide justification for the rationality of their actions. As outlined in Section 126.96.36.199, some of the principal benefits of a structured 765 Macklin, supra note 3 at 317. 766 Cohen-Eliya & Porat, supra note 70 at 466. 767 Kumm, supra note 70 at 154. Kumm suggests that judicial review can be understood as a form of institutionalized Socratic contestation. 147 proportionality analysis are its ability to enhance transparency in decision-making and facilitate an institutional dialogue. While no analytical process can guarantee objective decision-making, a structured doctrinal test can present a challenge to a judge?s ideological views and reduce the likelihood of arbitrary decisions. The process of the proportionality test forces judges to ?formulate their judgments?, making the outcome ?more reasoned? and ?more true?.768 As explored above in Section 3.4, the manner in which the Court applied a proportionality analysis in Dor? lacked the structured nature of the Oakes test. The Dor? decision merely requires that the decision-maker has considered (or was ?conscious? of) the rights-limiting nature of his or her decision. While the Court suggested that the decision should interfere with the relevant Charter guarantee ?no more than is necessary given the statutory objectives?,769 the decision reveals no consideration of whether a formal reprimand was in fact necessary to achieve the statutory objectives. Given its rejection of a structured proportionality framework and the lack of justificatory requirement on the decision-maker, the Dor? approach to judicial review of rights-limiting administrative decisions therefore has the potential to be much less transparent, and less intelligible, than the Oakes test approach.770 The Dor? approach also permits a less robust balancing exercise than the Oakes test. Given the Court?s rejection of re-weighing when conducting reasonableness review, as well as the minimal reason-giving requirement placed on administrative decision-makers, the Dor? approach risks that the courts will not give the Charter right adequate weight in the 768 Attaran, supra note 81 at 262. For further benefits of a structured proportionality analysis, see Section 188.8.131.52. 769 Dor?, supra note 11 at para 7. 770 In this regard, Wilson J warned against replacing the strict standard of review under the Oakes test with a more deferential standard of ?reasonableness?: Bertha Wilson, ?Human Rights and the Courts (Seminar on the Functioning of Government: The Canadian Experience, Ottawa, May 30, 1991)? in Speeches delivered by the Honorable Bertha Wilson, 1976-1991 (Ottawa: Supreme Court of Canada, 1992) 472 at 747. 148 balancing.771 A structured proportionality test, on the other hand, would require the reviewing court to assess the balance that the decision-maker has struck and to examine the relative weight accorded to the right and any competing interests or considerations. The Court?s rejection of the Oakes test also risks the courts disregarding the rationale and reasoning contained in Charter cases, and consequently issuing decisions that are out-of-step with Charter jurisprudence. An important question is whether a direct application of the Charter, including the Oakes test, actually results in disparate treatment of similar cases compared with a ?proportionate balancing? approach. While it is not clear that a reasonableness review will necessarily fail in terms of rights protection, or that application of the Oakes test would necessarily be more favourable to an individual complaining of an infringement of Charter rights than the application of a reasonableness standard of review, (as noted above) the way in which the courts reach outcomes is important. The methodology the courts use to reach decisions is significant in terms of education and future administrative decision-making. Given both the deferential approach of the Court and the ?relatively inchoate analysis of the relative weight of statutory purposes and competing Charter values?,772 the Dor? approach is less rigorous than the Oakes test (at least with regard to the justification or reasons required of the government actor). This lack of clarity may permit courts to take varying approaches in determining whether the ?proportionate? or ?proper? balance has been achieved. 771 This critique has been levelled at the Court?s adoption of the balancing approach to integrating Charter values into the common law: see Ross, supra note 633 at 132. Ross argued that the lack of weight assigned to freedom of expression in Hill was completely out of line with previous Charter jurisprudence. 772 Wildeman, supra note 23 at 364, 378. 149 4.2.4 Potential for varying approaches 184.108.40.206 Impact of the type of decision under review As noted in Section 220.127.116.11.2, ?reasonableness? can take different forms in different contexts, and will be assessed in the context of the particular type and expertise of the administrative decision-maker involved, amongst other relevant factors.773 The Court?s reliance in Dor? on a conception of administrative decision-makers as judicial-like therefore raises questions about how the courts will apply the Dor? approach to future cases, particularly those involving non-adjudicative decision-makers.774 The Court does not clarify in Dor? how the type of administrative decision-maker, or the decision-maker?s actual expertise in the subject matter at issue, will influence the standard of review.775 For example, Dor? considered an adjudicatory decision-maker, so its applicability to other administrative bodies such as a minister exercising discretion in a political area is debatable. Decision-makers that lie at the policy or legislative end of the spectrum are generally accorded more deference by the courts, so one would expect that an even more deferential version of the Dor? approach would be taken in cases involving these decision-makers. It is unclear, however, whether the Dor? decision extends to discretionary decisions made by all administrative decision-makers, such as police officers,776 and therefore Dor? may in fact have ?siloed? off certain areas of public law. The ?nature of the decision and the statutory and factual contexts? may also impact on the determination of whether the decision reflects a proportionate balancing of the Charter protections at play.777 Whether the decision is categorized as dealing with facts, mixed fact 773 Binnie J raised the importance of the type of decision-maker and the nature of the decision in Dunsmuir: see Dunsmuir, supra note 10 at paras 135?139, Binnie J. 774 For example, municipalities, Ministers or immigration officers making decisions that take into account a number of policy considerations. 775 Catalyst Paper, supra note 486. 776 For some examples of cases reviewing discretionary decisions by police officers, see Section 18.104.22.168. 777 Dor?, supra note 11 at para 57. 150 and law, or a question of law may impact upon the level of deference applied by the court. The intensity of the proportionality analysis may also vary according to considerations such as relative expertise and strength of the relevant rights and interests (including public or democratic interests). It is clear, therefore, that the stringency or rigorousness of the Dor? approach is likely to vary depending on the type of decision-maker, and the nature and context of the decision under review. 22.214.171.124 Avoiding the Charter? The Dor? decision leaves many questions unresolved and appears to allow for varying approaches on judicial review, including categorizing the case as ?administrative? and applying established administrative law techniques to resolve the case, despite a Charter challenge to the decision. For example, in Pridgen v University of Calgary [Pridgen],778 judges on the Alberta Court of Appeal avoided applying the Charter despite a challenge to an administrative decision on the basis that it was inconsistent with the Charter. In that case, two University of Calgary students sought judicial review of the University?s decision to discipline them for comments made about a professor on Facebook on the basis that the University acted unreasonably and infringed their right to freedom of expression as guaranteed by s. 2(b) of the Charter. Although all three judges in Pridgen concluded that the University?s decision was unreasonable, only Paperny JA addressed the Charter issue. The two other judges decided the case purely on administrative law grounds, concluding that there was ?no need to resort to a Charter analysis in this case? (despite the students? Charter claim).779 Paperny JA noted that the University had not conducted any Charter inquiry, and had made no attempt to balance its 778 Pridgen v University of Calgary, 2012 ABCA 139. 779 Ibid at para 176, McDonald JA. While O?Ferrall JA cited the fact that no consideration was given to the students? rights to freedom of expression as a reason for the decision being unreasonable, he rejected a Charter analysis because the students had applied for the administrative law remedies: Ibid at paras 179?183, O?Ferrall JA . 151 statutory mandate with freedom of expression.780 She concluded that the University?s decision had therefore breached the students? right to freedom of expression ?and cannot be saved by section 1?.781 The fact that the Dor? decision was released only shortly before Pridgen may account for some of the confusion on the part of the judges over the appropriate approach to take.782 However the case is also illustrative of a fundamental concern that Charter review cannot deal with all aspects of administrative decision-making. It is understandable that, when faced with reviewing an administrative decision, judges will turn to administrative law. However, the Dor? approach is clearly intended to ensure that Charter values are considered when relevant, and directs that this consideration can take place within an administrative law framework. Given that the Charter is supreme law, it would be concerning if courts could avoid applying the Charter when an administrative decision is challenged as being inconsistent with the Charter. 126.96.36.199 Correctness in some cases? In Dor?, the Court clarified that the fact that a Charter guarantee is in issue should not change the standard of review applicable.783 However, Dor? arguably leaves open the possibility that a correctness standard of review will still be adopted in some cases, either in relation to the whole decision or to the issue of whether the decision-maker has identified the 780 Pridgen, supra note 778 at para 127, Paperny JA. Paperny JA stated: The balance to be struck is between the seriousness of the impugned conduct and its effect on the tenor of debate, and the student?s ability to criticize, comment on or refute the quality of education he or she receives. The University?s actions in disciplining the Pridgens did not balance their expressive rights with the University?s statutory objectives; indeed, the University denied the existence of those rights entirely. 781 Ibid at para 128, Paperny JA. Justice Paperny also noted that the University?s decision was unreasonable from an administrative law perspective. 782 Pridgen was released on May 9, 2012 (less than two months after Dor?). 783 The Court confirmed that reasonableness remains the applicable review standard for disciplinary decisions and ?the fact that Charter interests are implicated does not argue for a different standard?: Dor?, supra note 11 at para 45. The Court indicates that the standard of reasonableness is more appropriate in such a case because ?[e]ven where Charter values are involved, the administrative decisionmaker will generally be in the best position to consider the impact of the relevant Charter values on the specific facts of the case?: Ibid at para 54 (emphasis in original). Fox-Decent and Pless point out that this distinction is puzzling given that, in Charter challenges to legislation, the Court generally insists that a law must be tested in its actual application, and the analysis is undertaken with reference to the particular facts of the case: Fox-Decent & Pless, supra note 6 at 432. 152 correct right and scope of that right.784 Given that the reasonableness standard of review gives rise to the potential for inconsistency in the interpretation and application of constitutional rights and values,785 judges may be concerned about such inconsistency and therefore be tempted to apply a correctness standard. Even following the Dor? approach, there is room for courts to apply a correctness standard. For example, a correctness standard may be applied in a situation where the administrative decision-maker is adjudged to not have expertise in interpreting and applying the Charter, and where the court considers that the decision raises a question of importance to the legal system (thus potentially falling within the exception of a ?question of general law ? of central importance to the legal system as a whole and outside the adjudicator?s specialized area of expertise?).786 The Dor? approach could also potentially be interpreted to mean that courts should ensure that administrative decision-makers? interpretations of the scope of the relevant Charter right must be correct. This interpretation would fit with the Court?s approach in Canada v PHS, in which the Court applied s. 7 of the Charter to the Minister?s decision with no reference to deference.787 It would also accord with the manner in which courts review legislation subject to a Charter claim, where the court tests the balance struck through the legislation for correctness on a full Charter analysis. Only after a violation is proven do the 784 The focus in Dor? was on whether the limit imposed on Mr. Dor??s guarantee to freedom of expression was reasonable, rather than whether this Charter guarantee was breached. This is primarily the result of the fact that, in Charter jurisprudence, the Court has defined freedom of expression expansively so that all of the analytical work is done in the s. 1 analysis: see Miller, supra note 104 at 98. As a result, the Court provided very little guidance on how courts should review administrative decisions for compliance with Charter when the scope or application of a Charter right or freedom is in issue. 785 Wildeman raises the question of the possible implications of the rejection of correctness review for consistency in the interpretation and application of constitutional rights and values: see Wildeman, supra note 23 at 364. 786 See Dunsmuir, supra note 10 at para 55. 787 Canada v PHS, supra note 105 at para 114. See also Dunsmuir, supra note 10 at para 142, Binnie J. Binnie J stated: In a challenge under the Canadian Charter of Rights and Freedoms to a surrender for extradition, for example, the minister will have to comply with the Court?s view of Charter principles (the ?correctness? standard), but if he or she correctly appreciates the applicable law, the court will properly recognize a wide discretion in the application of those principles to the particular facts. 153 courts show any deference to the legislature. The Alberta Court of Appeal has applied Dor? in this way, suggesting that ?[a]s long as the tribunal?s decision correctly interprets the Charter text, the decision will not be disturbed unless its assimilation of Charter values is disproportional, and therefore unreasonable?.788 If this interpretation is taken, whether or not the right has an internal limitation will become significant for the approach taken on review. For example, in freedom of expression cases s. 2(b) is accorded a large and liberal interpretation, and the weighing of competing values takes place in the s. 1 analysis.789 In contrast, the Court interprets the s. 7 right to ?life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice? in a manner that results in Oakes test-like justification considerations being considered when defining the right.790 The first stage of the review (interpretation of the right) therefore considers contextual factors and the equivalent of the Oakes test.791 Accordingly, it is unclear how a s. 7 challenge to an administrative decision would proceed: would the Court determine whether the administrative decision-maker had correctly interpreted and applied s. 7 (based on the Court?s view of the application of the principles of fundamental justice to the case) or apply the Dor? approach of assessing whether a proportionate balance has been struck? In my view, it is not defensible to adopt a differing methodological approach based on a distinction between Charter rights that are internally limited and those that do not contain limiting language or are interpreted broadly. 788 United Food and Commercial Workers v Alberta (Attorney General), 2012 ABCA 130 at paras 40, 87. See also R v Whatcott, 2012 ABQB 231. In that case, the Alberta Court of Queen?s Bench concluded that the University?s use of the provincial trespass legislation to prohibit Mr. Whatcott from distributing his (allegedly anti-homosexual) flyers on campus violated Mr. Whatcott?s freedom of expression as protected by s. 2(b) of the Charter. The Court held that ?while a Charter analysis addresses as separate steps whether the Charter was infringed and, if so, whether the infringement can be justified, the steps are not completely distinct one from the other. Where the first step is reviewed on a correctness standard, so too should be the second.?: Ibid at para 19. 789 Keegstra, supra note 135 at 734. 790 See above, Section 3.4.3. 791 See Canada v PHS, supra note 105. 154 The Dor? approach to review of administrative decisions impacting on Charter values appears to be more deferential than the Oakes test. Arguably, legislation (which is enacted by democratically elected bodies) is more worthy of judicial deference than is the exercise of administrative discretion.792 Judges may therefore be justifiably concerned that this non-stringent approach will not set aside decisions that are inconsistent with the Charter, and this may lead judges to apply a correctness standard, either openly or covertly.793 However, applying a correctness standard of review to rights-impacting administrative decisions would not enhance a institutional dialogue or respect for administrative decision-making, given that correctness review entails the court determining the ?correct? answer and therefore not engaging with the decision-maker?s justificatory reasons. It is also difficult to conceive of a sound rationale for segmenting the judicial review of an administrative decision into correctness review for whether the right has been infringed and reasonableness with respect to the justification for infringing that right, or for applying a differing standard of review purely on the basis that limiting language is contained within the right. 4.3 Discretion and the rule of law Another troubling distinction made by the Court in Dor? is that between law and discretion.794 The reviewing court?s decision on whether the source of the limit is located in 792 See Susan L Gratton, Administrative Law in the Welfare State: Addressing the Accountability Gap in Executive Social Policy-making (PhD Thesis, University of Toronto (Canada), 2011) [unpublished] at 181. 793 Judges may also be concerned that administrative decision-makers are not well-suited to integrating system-wide or fundamental values into their specialized areas of decision-making: see Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham, Ont: LexisNexis, 2008) at 625. The issue of institutional expertise in relation to constitutional rights has caused the courts some trouble. Historically, the Court has generally not recognized human rights tribunals as having specialized expertise, given that rights adjudication is part of the judicial function and institutional self-understanding: see Macklin, supra note 3 at 296; Wildeman, supra note 23 at 338. However, the Court has recently shown deference where the matter is fact intensive or goes to tribunal processes: Pushpanathan v Canada (Minister of Citizenship and Immigration),  1 SCR 982 at para 45; Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at paras 25?27. 794 See Dor?, supra note 11 at para 37. See also Hutterain Brethren where the majority suggested that s. 1 should perhaps not be applied if a government action or practice (as opposed to legislation) is at issue, emphasizing that laws are different to particular decisions when it comes to a s. 1 analysis: Hutterian Brethren, supra note 8 at paras 66?69. 155 legislation (or a policy or rule that meets the definition of ?law?),795 or a discretionary decision, will dictate the analytical approach taken to determine whether a limit on a Charter right is justified (that is, whether to apply the Oakes test or the Dor? approach). If the limit can be attributed to a legislative provision, the court will apply the Oakes test but if it cannot be, the court will follow the Dor? approach. This means that a discretionary decision is not subject to the same justificatory requirements as legislation, regulations, rules or guidelines. In this section, I argue that this categorical approach does not seem to appreciate the difficulty of distinguishing between law and discretion in the modern administrative state.796 The approach the Court has taken in recent cases also fails to ensure that limitations on Charter rights are authorized by law, raising concerns about the forseeability of rights-limitations and a lack of constraints on administrative discretion. This approach does not ensure that the sources of unconstitutional state activity are identified and remedied. Further, the different standards of review for ?laws? and discretionary decisions may create incentives for legislators to grant broad discretion to administrative bodies, rather than enacting detailed statutory provisions or regulatory rules to constrain discretion. 4.3.1 Categorical approach to law and discretion In Dor?, the Court embraced a categorical approach to law and discretion whereby the source of limitation on Charter rights (a ?law? or a discretionary decision) takes on a particular significance in terms of the methodological framework the courts will apply. The Dor? approach applies to discretionary administrative decisions challenged as being inconsistent with the Charter; it does not change the approach courts should take when reviewing legislation or binding rules under the Charter. As outlined above (see Section 795 See Vancouver Transit, supra note 7 at para 56?63. For an explanation of the distinction made in that case between ?law? and administrative policies or decisions, see Section 188.8.131.52. 796 See Lorne Sossin, ?The Rule of Policy: Baker and the Impact of Judicial Review on Administrative Discretion? in David Dyzenhaus, ed, The Unity of Public Law (Portland, Oregon: Hart Publishing, 2004) 87 at 112; Gratton & Sossin, supra note 5 at 161; Gratton, supra note 41 at 509. 156 184.108.40.206), in Vancouver Transit the Court established a distinction between policies that are ?legislative in nature? (which are considered ?law?) and those that are ?administrative in nature?.797 In Dor?, the Court takes this analysis further, suggesting that the Charter framework is inappropriate in cases involving challenges to administrative decisions on individual cases as opposed to ?a law or other rule of general application?.798 However, the Charter framework will continue to be applied to a decision made on the basis of a law or ?rule of general application? (that is, when the decision-maker has express authority to infringe the individual?s Charter guarantee).799 Therefore, where an alleged limitation of a Charter guarantee is at issue, the applicable analysis will depend on whether the limit results from a ?law? or from an administrative decision. Courts will therefore undertake a different analysis, depending on whether the Charter infringement is alleged to stem from a legislative provision or rule, or a discretionary decision. 220.127.116.11 Discretion in administrative law At one time, administrative law drew a similar categorical distinction between law and discretion. The courts have struggled to find the proper place of discretion within the legal system. Within administrative law, the courts oscillated between a view of discretion governed by politics (the traditional view) and one governed by legal principles.800 Questions of statutory interpretation were traditionally considered to be different from issues involving 797 Vancouver Transit, supra note 7 at para 58?63. This reflects a continuum of types of law: from general norms at the broadest (statutes, constitutional laws), to less broad but still general (regulations, orders, directives), to soft law (manuals, policies, guidelines), to individual decisions, to norms that are not ?law? but persuasive authority (unincorporated international norms). There is a fluidity amongst these categories so that soft law can become binding or have that effect if norms are incorporated. In contrast, within a civil law system the distinction between those things which are ?law? (?r?gles de droit?) and those which are not ?evokes relatively certain content? compared to the concept of law in the common law: Leckey, supra note 281 at 614. 798 Dor?, supra note 11 at para 39. 799 See Fox-Decent & Pless, supra note 6 at 424?437. 800 Cartier, supra note 162 at 403. 157 control of discretionary power.801 Until Baker, judicial review was exercised differently depending on the kind of decision under examination. When called upon to review administrative interpretations of the law, the courts demonstrated deference unless those decisions were ?unreasonable? or ?patently unreasonable? (or failed according to the correctness standard of review if the conditions for deference were not met). Administrative discretionary decisions, on the other hand, were reviewed to ensure that legal limits were respected by decision-makers but without reviewing the substance of those decisions. The courts would not interfere with a discretionary decision except in cases of ?abuse of discretion? (as discretionary decisions generally involve policy choices, so subjecting discretion to substantive legal scrutiny was viewed as interference by the courts in politics).802 The courts therefore traditionally exercised less control over discretion than over decisions based on statutory provisions.803 However, with the increased specialization and expertise of administrative tribunals, the courts came to recognize that the legislature sometimes intended legal questions to be determined by those bodies rather than by the courts, and the traditionally distinct categories of legal interpretation and discretion began to converge.804 This was accompanied by the concurrent development of a contextual and purposive approach to 801 David Dyzenhaus, Murray Hunt & Michael Taggart, ?The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation? (2001) 1 OUCLJ 5 at 14; Cartier, Genevi?ve, supra note 25 at 61. 802 Cartier, supra note 162 at 395. The alleged dichotomy between questions of law (which are appropriate for the courts) and questions of policy (which are not) recalls Ronald Dworkin?s argument that judges should base their decisions on matters of principle rather than policy: Dworkin, supra note 121 at 122. Dworkin defines a "principle" as a ?requirement of justice or fairness or some other dimension of morality? and "policy" is as ?a kind of standard that sets out a goal to be reached, generally an improvement in some economic, political or social feature of the community?. 803 Note, however, that that the courts have always limited discretionary powers by reading implied conditions on those powers into (or out of) statutes, by intuiting the purpose of the power, and by identifying the factors or considerations relevant to its exercise. This limiting of discretionary power ?is partly an exercise in divining statutory purpose and relevant considerations, and partly an application of the strong rule of law ideal that no power is unfettered?: Dyzenhaus, Hunt & Taggart, supra note 801 at 26. 804 See, for example, C.U.P.E. v N.B. Liquor Corporation, supra note 381; Nicholson v Haldimand-Norfolk Regional Police Commissioners,  1 SCR 311. 158 statutory interpretation in public law, which assists a reviewing court in concretizing broad or vague grants of statutory discretion.805 In Baker, the majority held that administrative interpretations of the law are essentially no different from administrative exercises of discretionary power, and therefore the same approach should be used in reviewing both types of decision. The Court reasoned that there is no ?rigid dichotomy? between discretionary and nondiscretionary or rule-based decisions, and no ?easy distinction? may be drawn between statutory interpretation and discretion.806 Accordingly, Baker eliminated any persisting categorical distinction between law and discretion for the purposes of administrative law.807 Baker also recognized that the substance of discretionary decisions can be subjected to legal control.808 While discretionary decisions that balance multiple factors usually attract deference ?because of its indeterminacy, the interplay of factors, and the courts? stated reluctance to reweigh evidence on review?,809 administrative agents never have the power to make a truly unfettered choice. Even if no express standards are prescribed, the purpose of the legislative scheme and the principles of law will always constrain the exercise of discretion.810 Given this rejection of the law-discretion dichotomy in administrative law, in the next section I consider whether there is any reason why such a distinction should be made when discretionary decisions are challenged on Charter grounds. 805 Wildeman, supra note 23 at 329?332. 806 The Court explained: ?Most administrative decisions involve the exercise of implicit discretion in relation to many aspects of decision making. ? In addition, there is no easy distinction to be made between interpretation and the e
UBC Theses and Dissertations
Discretionary administrative decisions and the Charter of Rights : Doré and determining the "proportionate"… Parker, Sarah R. H. 2013
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