Discharging the Doré Duty
This is the final excerpt from my forthcoming article “The Doré Duty: Fundamental Rights in Public Administration“, to appear shortly in the Canadian Bar Review.
The Doré duty is a procedural duty. It makes Charter values a mandatory consideration in cases to which the duty applies. Failure to take relevant Charter values into account before adopting a policy, exercising a discretion, making an individualized assessment or interpreting a statutory provision justifies invalidation of the decision. Under the Vavilov framework, compliance with the Doré duty will most often be addressed by reference to the reasons provided by an administrative decision-maker.[1]
First, where an administrative decision-maker has failed to discharge the Doré duty, either because the failure is manifest in its reasons[2] or evident from the record,[3] the decision will be struck down and (subject to any exercise of remedial discretion[4]) the matter remitted to the decision-maker.
Second, compliance with the Doré duty is assessed independently of the reasonableness of the decision.[5] The judicial review aspect of Doré is distinct from its administrative justice aspect. In Doré itself, compliance with the duty to take Charter values into account was assessed independently of the reasonableness of the decision.[6] Similarly, in the Trinity Western case, the Supreme Court held that the Law Society had to be able to demonstrate that it was “alive to the question of the balance to be struck,”[7] and “then,”that the balance struck was reasonable.[8] In this case, the record demonstrated that the Law Society had satisfied the Doré duty. The Supreme Court went on to hold that the interference with Charter rights was proportionate. There were two distinct steps in the analysis.
The recent decision of the New Zealand Supreme Court in Moncrief-Spittle v Regional Facilities Auckland Limited[9]endorsed Doré and illustrates this feature of the Doré duty very well. The incident which gave rise to the underlying litigation was the cancellation of an event featuring alt-right speakers (Canadians both, as it happens) at the Bruce Mason Centre, a 1,000-seat theatre in Auckland. Perhaps, predictably enough, when word began to circulate about the event, voices were raised in opposition to giving these speakers a platform; one local group promised to blockade the venue and confront the speakers. The organizers had not concealed any information about the event, but equally, they had not raised potential security issues, even though they had faced similar challenges in hosting a similar event in Australia. Ultimately, the facilities management company (RFAL) responsible for the venue decided to cancel the event. An application for judicial review was brought by two individuals, a ticket holder for the cancelled event and a local concerned citizen.
The Supreme Court held that freedom of expression was a “substantive constraint” on RFAL in two ways.[10] First, RFAL “had to turn [its] mind to and engage with the question of whether it was reasonable to limit the free speech interest in play by cancelling the event.”[11] Indeed, in the decision-making process, RFAL was “required to give freedom of expression a heavy weighting.”[12] Here, RFAL’s decision-making was adequate: it took freedom of expression into account and balanced it with its statutory duties in respect of health and safety; and it considered options which would be minimally impairing of freedom of expression, though many of these were not actionable because of decisions made by the organizers (e.g., to publish information about the venue).[13] Second, on judicial review, the reviewing court would have to be “satisfied that the decision was a reasonable limit.”[14] In the circumstances of this case, the Court held that the cancellation decision was a reasonable limit on freedom of expression.[15]
In cases where reasons are given for a decision, the two steps will merge, in the sense that both can be assessed by reference to the reasons provided.[16] Under the rubric of reasonableness review, an administrative decision-maker must demonstrate “responsive justification” to Charter values and “grapple” with them.[17] If the reasons demonstrate an absence of responsive justification and grappling, the decision will be unreasonable. And, as mentioned above, if a Charter “right” is also implicated, the administrative decision-maker must, in addition, reach a decision that respects the constraints of the Charter.[18]
In situations where reasons cannot be given for a decision, greater care must be taken.[19] Sometimes, the record “will … uncover a clear rationale”[20] which can be measured against the Doré duty.[21] This was what occurred in the Trinity Western case. However, in other cases involving the application of the Doré duty to legislative-type decisions, the record has demonstrated inadequate attention to Charter values.[22]
Third, the normative reach of the Doré duty is somewhat limited. It is a duty to take Charter values into account, not a duty to reach a particular result. Whereas a decision-maker might have to demonstrate that its final decision represents a minimal interference with a Charter right, achieving a proportionate balancing of the rights and interests at stake, taking account of Charter values, does not restrict the decision-maker’s freedom of movement to the same extent. Just as the duty to consult does not give Indigenous peoples a veto on Crown conduct, the Doré duty does not compel an administrative decision-maker to reach a particular conclusion. Imposing the Doré duty does not give Charter values direct normative effect (just as unwritten constitutional principles are not standalone bases for invalidating statutes) but rather treats them as defeasible procedural constraints on decision-makers. They are “interpretive aids” which decision-makers must engage with but need not necessarily comply with.[23] The Doré duty, which is an aspect of “administrative justice,” involves “administrative law balancing, not a specific invalidation of any government action.”[24]
A good example is the decision of the Court of Appeal for Ontario in Lalonde v Ontario (Commission de restructuration des services de santé).[25] There the Commission required the closure of a hospital which served the minority Francophone community in Ottawa. Justices of Appeal Sharpe and Weiler explained that the Commission’s decision had to be struck down for its failure to engage with the unwritten constitutional principle of protection for linguistic minorities:
The Commission offered no justification for diminishing Montfort’s important linguistic, cultural, and educational role for the Franco-Ontarian minority. It said that matter was beyond its mandate. The Commission failed to pay any attention to the relevant constitutional values, nor did it make any attempt to justify departure from those values on the ground that it was necessary to do so to achieve some other important objective. While the Commission is entitled to deference, deference does not protect decisions, purportedly taken in the public interest, that impinge on fundamental Canadian constitutional values without offering any justification.[26]
Conclusions in judicial review cases are often stated in negative terms, as decisions are quashed for failure to comply with various duties. But the Court of Appeal’s complaint in Lalonde was not that the Commission had failed to take the best possible decision in the circumstances; rather, what was lacking was meaningful engagement with a relevant constitutional principle. Just as the courts use Charter values to inform development of the common law[27]—and use unwritten constitutional principles to put flesh on the bones of the textual structure of the Constitution—so too can administrative decision-makers infuse their decisions with Charter values.
Accordingly, this point can be stated in positive fashion. The goal of the Doré duty is to empower administrative decision-makers, not to constrain them. The objective is not to enlarge the scope of the Charter or unmoor it from its textual anchors but to force administrative decision-makers—who may not be legally trained—to engage with the Charter. This approach recognizes that the Charter is not “some holy grail which only judicial initiates of the superior courts may touch” but one which belongs to the people and, as a result, “law and law-makers that touch the people must conform to it.”[28] Doré provides for an informal approach to the application of constitutional norms, which is well suited to the characteristics of many decision-makers[29] and is in harmony with the insistence in Vavilov that “‘Administrative justice’” will not always look like ‘judicial justice.’”[30] It is in specific contexts that the implications of Charter values are most likely to be felt by administrative decision-makers, especially those on the front lines of public administration,[31] who are therefore well placed to bring their expertise to bear.
Furthermore, the practical reality is that many constitutional norms are underenforced.[32] Underenforcement may occur because the courts lack the ability to consider a particular matter due to the operation of doctrines such as mootness, standing or exhaustion of remedies. Norms may also be underenforced because nobody has the resources to bring a constitutional challenge. Or the underenforcement of a norm may simply escape public knowledge because it occurs secretly, in the heart of government. The Doré duty is a useful corrective to underenforcement.
By requiring them to consider Charter values, rather than the intricacies of Charter doctrine, the Doré duty enables administrative decision-makers to engage through their reasons with the values underpinning the provisions of the Charter. An administrative decision-maker might well conclude that a Charter value has less weight in a particular context than a statutory objective. Equally, however, the process of writing reasons which engage with the Charter value might cause the decision-maker to reach a different decision or, at least, write a different set of reasons to justify their decision. Ultimately, the concern is to create “a bridge between fundamental and core values on the one hand, and the choices legislatures and executive government make on the other.”[33]
[1] As mentioned above, on a statutory appeal the situation is different. Questions relating to compliance with the Charter are generally to be answered on the correctness standard on statutory appeals (see e.g. Strom v Saskatchewan Registered Nurses’ Association, 2020 SKCA 112). But the correctness standard imposes obligations of result, not obligations of reasoning: if the decision-maker can demonstrate by reference to the record and reasons (if any) that it took was “alive” to the relevant Charter values, this will arguably be sufficient to discharge the Doré duty, even if the decision-maker’s reasons would not necessarily survive reasonableness review.
[2] See e.g. Canada (Attorney General) v Robinson, 2022 FCA 59 at para 28 [Robinson].
[3] See e.g. Canadian Centre for Bio-Ethical Reform 1, supra note 56 at para 60; Guelph and Area Right to Life, supra note 56 at paras 77–85.
[4] Vavilov, supra note 41 at paras 139–142.
[5] Evan Fox-Decent & Alexander Pless, “The Charter and Administrative Law Part II: Substantive Review” in Colleen Flood & Paul Daly, eds, Administrative Law in Context, 4th ed (Toronto: Emond Montgomery, 2021) at 408–410.
[6] Doré, supra note 1 at paras 66–67. First, the decision-maker had to “demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer’s right to expression and the public’s interest in open discussion. As with all disciplinary decisions, this balancing is a fact-dependent and discretionary exercise” (at para 66). Second, it was necessary for a reviewing court to assess the reasonableness of the decision: “To make that assessment, we must consider whether this result reflects a proportionate application of the statutory mandate with Mr. Doré’s expressive rights”.
[7] Trinity Western, supra note 5 at para 55.
[8] Ibid at para 56.
[9] [2022] NZSC 138.
[10] Ibid at para 83.
[11] Ibid.
[12] Ibid at para 121.
[13] Ibid at paras 125–130.
[14] Ibid at para 84.
[15] Ibid at paras 101–103.
[16] See e.g. Robinson, supra note 67 at para 28. Again, this is subject to a caveat as far as statutory appeal appeals are concerned: on correctness review, the court must focus on whether the outcome was correct, not whether the outcome was adequately justified by the reasons provided by the decision-maker. Correctness review imposes an obligation of result, not of reasoning. As such, as long as the court is satisfied having reviewed the record and reasons (if any) that the decision-maker was appropriately alive to the relevant Charter values, the Doré duty will have been discharged, even if the record and reasons might not necessarily have been adequate if subjected to reasonableness review.
[17] Vavilov, supra note 41 at paras 128, 133.
[18] Trinity Western, supra note 5 at para 82.
[19] Cf AB, supra note 56 at paras 50–54, failing to untangle a policy from its application in individual cases and thereby wrongly concluding that there had been a merger of the two steps.
[20] Vavilov, supra note 41 at para 137.
[21] See also Baker, supra note 43at para 44, and for a particularly broad approach, Canadian Centre for Bio-Ethical Reform 2, supra note 56 at paras 36–42.
[22] See e.g. Canadian Centre for Bio-Ethical Reform 1, supra note 56 at para 60; Guelph and Area Right to Life, supra note 56 at paras 77–85.
[23] Toronto v Ontario, supra note 16 at para 84.
[24] Sossin & Friedman, supra note 4 at 413. This point is sometimes misunderstood. See e.g. AB, supra note 56at paras 56–57.
[25] (2001), 208 DLR (4th) 577, 56 OR (3d) 505 [cited to OR].
[26] Ibid at para 184.
[27] See especially RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573, 33 DLR (4th) 174.
[28] Cooper v Canada (Human Rights Commission), [1996] 3 SCR 854 at para 70, 140 DLR (4th) 193, McLachlin J dissenting. See also Thomas Poole, “The Reformation of English Administrative Law” (2009) 68:1. Cambridge LJ 142, at 153–158.
[29] Paul Daly, “The Inevitability of Discretion and Judgement in Front-Line Decision-Making in the Administrative State” (2020) 2:1 J CommonwealthL 99 at 123–132.
[30] Vavilov, supra note 41 at para 92. As Lord Hoffmann observed in R (Begum) v Denbigh High School, [2007] 1 AC 100 at para 58, one cannot expect front-line decision-makers to make decisions “with textbooks on human rights law at their elbows”.
[31] Angela Cameron & Paul Daly, “Furthering Substantive Equality through Administrative Law: CharterValues in Education” (2013) 63 SCLR169 at 190–196, 199–201. See also Castles, supra note 32 at para 185:
The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a ‘common or garden’ activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the ‘correct’ rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.
[32] Lawrence Gene Sager, “Fair Measure: The Legal Status of Underenforced Constitutional Norms” (1978) 91:6 Harv L Rev1212.
[33] Sossin & Friedman, supra note 4 at 422. See also Cameron & Daly, supra note 96 at 182–186.
This content has been updated on July 19, 2023 at 20:58.