Modes of Rights Protection III: Doré v. Barreau du Québec, [2012] 1 SCR 395

You will recall that in Slaight Communications, discussed in my previous post, Dickson C.J. endorsed Lamer J.’s neat analytical framework, with its clear distinction between administrative review and constitutional review, but noted that the evolution of administrative review might put the framework under pressure. So it proved. A blow-by-blow account of the development of Canadian administrative law in the post-Charter decades is unnecessary. A contrast between the definition (if it can be so called) of patent unreasonableness in the foundational case of New Brunswick Liquor and the seminal re-articulation of administrative law principles in Dunsmuir v. New Brunswick, [2008] 1 SCR 190 should suffice.

In New Brunswick Liquor, Dickson C.J. held that the relevant question on deferential review is “was the Board’s interpretation 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, [1979] 2 SCR 227, at p. 237). Having had 30 years to think about it, in Dunsmuir, LeBel and Bastarache JJ. defined reasonableness as follows:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.  Instead, they may give rise to a number of possible, reasonable conclusions.  Tribunals have a margin of appreciation within the range of acceptable and rational solutions.  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.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (at para. 47).

There is much one can say about this definition (and I have already said more than most). For present purposes, what is remarkable is how richer and more structured it is than Dickson C.J.’s perfunctory definition of patent unreasonableness.

It was against this backdrop that, in Doré v. Barreau du Québec, [2012] 1 SCR 395, the Supreme Court of Canada abolished the Slaight Communications framework and replaced it with a new analytical framework.

Doré was a lawyer. Upset by a judge’s conduct during the trial of his client and, especially, some choice remarks sent in his direction by the judge, Doré took the extraordinary step of writing a vituperative personal letter to the judge. Here are some choice excerpts:

 Your legal knowledge, which appears to have earned the approval of a certain number of your colleagues, is far from sufficient to make you the person you could or should be professionally. Your determination to obliterate any humanity from your judicial position, your essentially non-existent listening skills, and your propensity to use your court — where you lack the courage to hear opinions contrary to your own — to launch ugly, vulgar, and mean personal attacks not only confirms that you are as loathsome as suspected, but also casts shame on you as a judge, that most extraordinarily important function that was entrusted to you.

I would have very much liked to say this to your face, but I highly doubt that, given your arrogance, you are able to face your detractors without hiding behind your judicial position.

Worst of all, you possess the most appalling of all defects for a man in your position: You are fundamentally unjust. I doubt that that will ever change.

Although Doré had specified that the letter was personal and not for distribution, it eventually came to the attention of the Barreau du Quebec, which commenced disciplinary proceedings against Dore. At first instance, Doré challenged the constitutionality of the provision of the Code of ethics of advocates R.R.Q. 1981, c. B-1, r. 1, under which he was charged. The Barreau’s Disciplinary Committee rejected the challenge, found that Doré had breached the Code and imposed a 21-day suspension. On appeal to the Professions Tribunal, Doré argued instead that the decision to discipline him was a violation of his Charter-protected right to freedom of expression. But this argument failed as well.

In the Supreme Court, Abella J. expressly set out to “to reconcile the two regimes” of constitutional review and administratrive review “in a way that protects the integrity of each” (at para. 4). One of her justifications for doing so was that Lamer J.’s Slaight Communications framework had to be understood “in the context of the perceived inability of administrative law to deal with Charter infringements in the exercise of discretion” (at para. 26). Since then, things had changed. Indeed, the Supreme Court had occasionally used administrative law principles to address what would best be classified under the Slaight Communications framework as constitutional law problems. Abella J. acknowledged that applying the Oakes test “undoubtedly protects” Charter rights but worried that “it does so at the risk of undermining a more robust conception of administrative law” (at para. 34):

The alternative is for the Court to embrace a richer conception of administrative law…Under this approach, it is unnecessary to retreat to a s. 1 Oakes analysis in order to protect Charter values.  Rather, administrative decisions are always required to consider fundamental values…The administrative law approach also recognizes the legitimacy that this Court has given to administrative decision-making in cases [that] emphasize that administrative bodies are empowered, and indeed required, to consider Charter values within their scope of expertise (at para. 35).

Abella J. gave additional reasons for jettisoning the Slaight Communications framework, some of which she had raised previously in her concurrence (with Deschamps J.) in Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256. I have addressed these at length elsewhere and do not need to repeat them here. What is important for present purposes is the new framework Abella J. proposed. For Abella J., in situations where a Charter right has been infringed by an administrative decision, the reviewing court should apply the deferential reasonableness standard:

On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play…Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives. If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable (at paras. 57-58).

Abella J.’s analytical framework did not avail Mr. Doré: “In light of the excessive degree of vituperation in the letter’s context and tone, this conclusion cannot be said to represent an unreasonable balance of Mr. Doré’s expressive rights with the statutory objectives” (at para. 71).

To be fully appreciated, Doré has to be read alongside the subsequent decision of the Supreme Court of Canada in Loyola High School v. Quebec (Attorney General), [2015] 1 SCR 613. A detailed account of the facts is unnecessary. Suffice it to say that Loyola, a Catholic secondary school, was refused an exemption from the province’s secular religious education program, a refusal that it challenged by way of judicial review. Abella J. applied a reasonableness standard, but noted that “in order to ensure that decisions accord with the fundamental values of the Charter in contexts where Charter rights are engaged, reasonableness requires proportionality” (at para. 38). In addition, she pointed out: “A proportionate balancing is one that gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate” (at para. 39). In the end, a careful reader might suspect that there is little difference between Doré reasonableness and the Oakes test, a suspicion that would only be nourished by the fact that the minority judges in Loyola High School (applying the Slaight Communications framework without reference to Doré) reached more or less the same result as the majority judges.

I have written at length elsewhere about Doré. For the purposes of this paper, several observations are in order.

First, it is difficult to see how administrative review and constitutional review have been “reconcile[d]”, to use Abella J.’s term. On the one hand, if reviewing courts take seriously the directive in Doré that they must uphold a decision that “reflects a proportionate balancing” (at para. 57),  there is a risk that eliding the distinction between administrative review and constitutional review will weaken the latter.  Far from requiring the reviewing court to conduct the careful, four-step analysis mandated by the Oakes test, Doré suggests that a light-touch review will be sufficient. If so — and there are cases that take this approach — administrative review will dominate constitutional review.

On the other hand, from Loyola High School, we know that where a Charter right is engaged, reasonableness requires proportionality. From this proposition we can deduce that it will be for the reviewing court to determine whether a Charter right has been infringed. If a right has been infringed, the proportionality of the infringement will fall to be assessed by the court. And if the source of the rights infringement is a statutory provision rather than an administrative decision, we are thrown back on the application of the Oakes test to legislation (Doré, at para. 39). If so, far from having been reconciled to administrative review, it would appear as if constitutional review will remain dominant after all, even over the richer conception of reasonableness review set out in Dunsmuir.

Second, the significance of Doré  might not actually lie in the directives to reviewing courts. In a crucial passage, Abella J. wrote of the analytical approach administrative decision-makers should take in Charter cases:

How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion?   He or she balances the Charter values with the statutory objectives.  In effecting this balancing, the decision-maker should first consider the statutory objectives.  In Lake, for instance, 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)  (para. 27).  In Pinet, the twin goals of public safety and fair treatment grounded the assessment of whether an infringement of an individual’s liberty interest was justified (para. 19). Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives.  This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives (at paras. 55-56).

This is salutary advice for administrative decision-makers. But one can celebrate the analytical framework Abella J. set out for administrative decision-makers without celebrating the analytical framework she set out for reviewing courts. Courts and administrative decision-makers need not apply the same analytical frameworks in their respective roles. Indeed, there are good reasons to keep their functions distinct: administrative decision-makers’ primary role is the attainment of their statutory objectives; the courts’ primary role is the enforcement of legal values. Put another way, one can have administrative decision-makers that weigh Charter values against statutory objectives in exercising discretionary powers (and, one might add, in interpreting legislation) and courts that apply the Oakes test rigorously to the resultant administrative decisions. As it happens, this seems to be where we have ended up, if the language in Loyola High School about the primacy of proportionality is to be taken seriously.

Third, although Doré  purports to take advantage of the richer conception of reasonableness review set out in Dunsmuir, it only partially rectifies the flaws in the Slaight Communications framework. Perhaps lawyers’ lives would be made easier because the distinction between administrative review and constitutional review is not as stark — but as we have seen, statutory provisions will still be subject to the Oakes test; and where a Charter right has been engaged, reasonableness review will morph into proportionality review. To the problem of perverse systemic effects incentivizing broad grants of authority that can be used to infringe rights, Doré  offers a solution in the form of guidance to administrative decision-makers as to how they ought to exercise discretionary powers. But Doré offers no solution that courts can apply in cases where the guidance is not followed. Broad statutory powers remain problematic, because their mere existence may chill the exercise of Charter rights. The Doré framework does nothing to structure, confine or check such powers.

I have previously offered some brief thoughts on how the Dore framework might be adapted to those ends and hope to expand upon them in a fourth and final post in this series.

This content has been updated on December 14, 2016 at 20:56.