Modes of Rights Protection IV: A Public Law Model
My proposed “public law model” would draw on the strengths of administrative law and constitutional law. Abella J. was quite right to set out in Doré to try and draw on the strengths of both. The focus of this section is on how Abella J.’s laudable objectives might more effectively be achieved.
First, as her own reasons in Loyola High School indicate, proportionality and reasonableness can usefully be kept distinct. Where a Charter right has been infringed, a reviewing court should conduct the Oakes test to assess the proportionality of the infringement. Stating that “reasonableness requires proportionality” in such contexts is liable only to confuse. Canada has several decades of experience with the Charter and the proportionality test: the judicially enforced boundaries of the Charter are well known and can provide clear demarcation lines from ‘ordinary’ review for compliance the principles of administrative law. In other jurisdictions, the situation might be different. In the United Kingdom, for instance, rights can be located in the common law, European Union law, or European human rights law; if different standards of review apply depending on the source of the right, inconsistent results might be reached. In a recent case involving citizenship, the risk of inconsistency was especially evident: if the right was sourced in European Union law the right might be accorded a higher degree of protection than if it were sourced in the common law, even though the nature of the right would be the same regardless of its source. But such considerations do not apply in Canada.
Second, although it is worth highlighting the common law’s achievement in imposing legal controls on even the most broadly worded discretionary powers, the common law may need to go further in aid of rights protection.
Where a statute says something like “the minister may, in his absolute discretion…”, or “if in the minister’s opinion, it is necessary to do so, she may…”, it would be easy for courts to say that the exercise of the power in question is simply a matter for the minister. But they have not said this. Rather, they have generally insisted over the last century that there is no such thing as unfettered discretion. The famous passage from Rand J.’s reasons in Roncarelli v. Duplessis is worth repeating: “there is always a perspective within which a statute is intended to operate”. So when powers are used for improper purposes, or based on irrelevant considerations, courts will intervene. All things being equal, the existence of ex post control by the courts should reduce the likelihood that discretionary powers, even broadly drawn ones, will be misused. And yet, in the same passage in Roncarelli, Rand J. also observed: “no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute”. Where the language is clear, broad discretionary powers can be created. Courts can put fetters on “the minister’s absolute discretion” and similar formulations, but they cannot work miracles.
In the era of judicially enforceable fundamental rights there is also an important ex ante perspective, that of the individual who wishes to engage in activity protected by an instrument like the Canadian Charter. Faced with a broad discretionary power, the individual might think twice about going to a protest march, composing a critical tweet, or even making a telephone call to a friend. Against this chilling effect, knowledge that a discretionary power is merely broad, not unfettered, provides insufficient comfort.
The Charter seeks, accordingly, to insulate protected rights from this chilling effect by providing that interferences with rights must be “prescribed by law”, a term that has come to mean that exercises of discretionary powers must be foreseeable and predictable (as well as having some legal basis). The point was well put by the House of Lords in Director of Public Prosecutions v. Purdy, dealing with an analogous provision of European human rights law:
The Code will normally provide sufficient guidance to Crown Prosecutors and to the public as to how decisions should or are likely to be taken whether or not, in a given case, it will be in the public interest to prosecute. This is a valuable safeguard for the vulnerable, as it enables the prosecutor to take into account the whole background of the case. In most cases its application will ensure predictability and consistency of decision-taking, and people will know where they stand.
Indeed, the necessary foreseeability and predictability can come from internal guidelines and other ‘soft law’ instruments that seek to confine, structure and check discretionary powers. Although a law itself might give little indication as to the circumstances in which a discretionary power will be used, details about how officials are supposed to exercise the discretion may clarify, both for the officials themselves and for individuals, the circumstances in which it will be exercised.
Here, however, is where the common law’s success in imposing fetters on discretionary powers becomes problematic. In the mind of the traditional common lawyer, it is enough to say that the common law does not recognize unfettered discretion. Ex post judicial review for abuse of discretionary powers will suffice. Conceptually, any discretionary power exercised within the four corners of the statute — a potentially broad area — is of necessity “prescribed by law”. No further will a common law court go.
Where discretionary powers are very broad, as they are in the area of surveillance, more is needed, however. The “prescribed by law” function distinguishes between ex post and ex ante controls — between judicial review to ensure a decision-maker respected the fetters on her discretion and the provision of guidance that conditions how the powers will be used in the first place — and reminds us that both are necessary. Here, the importance of the Supreme Court of Canada’s injunction in Dunsmuir to have regard to “justification, transparency and intelligibility” in administrative decision-making processes can be appreciated: it is only by confining, structuring and checking broad discretionary powers that decision-makers will satisfy these exacting criteria.
Although I have made clear above that the public law model sees a role for both administrative review and constitutional review in protecting rights, it is necessary to reject a sharp distinction between administrative law — concerned only with control of the exercise of discretion — and constitutional law — concerned with enforcement of individual rights. The general focus should instead be on public law, broadly conceived, as a set of devices designed to ensure that decision-makers neither abuse their powers nor chill the exercise of protected rights. Requiring decision-makers to develop guidelines to confine, structure and check discretionary powers will serve this purpose:
New life can be breathed into section 1 by requiring decision-makers who have infringed Charter rights to demonstrate that they have put in place “soft law” instruments – especially publicly available guidelines – to minimize Charter violations and inform members of the public about the factors typically taken into account in the exercise of administrative powers. If they fail to do so, and cannot advance cogent reasons for the refusal to structure, confine and check their discretion, reviewing courts should stand ready to condemn their decision-making processes as lacking justification, transparency and intelligibility.
This represents an argument for an enhanced administrative law approach. The key to enhancing administrative review is to think about ways of controlling discretion that further the foreseeability and predictability goals of the “prescribed by law” function. In other words, the focus of administrative review should not be on the narrow question of whether the decision-maker acted intra vires but, more broadly, on whether the decision-maker took adequate account of the need to protect rights. Thinking in these terms moves us beyond slogans about unfettered discretion and the distinction between ex post and ex ante controls on discretionary powers, towards a general public law, in which controls on discretion and protection for individual rights go hand in hand.
 Pham v. Home Secretary  1 WLR 1591.
 Roncarelli, at p. 140.
 Id. Emphasis added.
  1 A.C. 345 at para. 54, per Lord Hope of Craighead. See similarly para. 86 (Lord Brown of Eaton-under-Heywood) and para. 101 (Lord Neuberger of Abbotsbury).
 See generally Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (Baton Rouge, LA, Louisiana State University Press, 1969).
 See in particular the robust comments of Laws L.J., a sophisticated British judge, in Miranda v. Home Secretary,  EWHC 255, at para. 83. His conclusion that the limitation on the claimant’s rights had not been prescribed by law was overturned on appeal:  EWCA Civ. 6, at para. 113.
 I realize, of course, that in ‘ordinary’ administrative law, the “justification, transparency and intelligibility” standard has been replaced by a much more relaxed standard: whether the reviewing court can understand the reasons for decision: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),  3 SCR 708. I do not wish to revitalize “justification, transparency and intelligibility” as a general standard of reasonableness in administrative law. My concern is with those broadly-drawn discretionary powers the existence of which may chill rights, an area in which “justification, transparency and intelligibility” captures the responsibilities imposed on decision-makers by the principles of administrative law.
 “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms” (2014) 65 Supreme Court Law Review (2d) 247, at p. 282.
This content has been updated on December 22, 2016 at 01:45.