Charter Values, Charter Rights and Adjudicative Tribunals

In two recent cases appellate courts have addressed the application of the Canadian Charter of Rights and Freedoms by adjudicative tribunals, the Alberta Court of Appeal in Webber Academy Foundation v Alberta (Human Rights Commission), 2023 ABCA 194 and Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425 (where I was counsel for the appellant). Leave to appeal has been sought in both matters: all of the materials in Lauzon have now been filed with the Supreme Court, so I now feel more at liberty to comment on the Court of Appeal’s decision.

I think it is helpful to start with my recent paper on the “Doré Duty” (now available in the Canadian Bar Review). As I explain, in Doré v. Barreau du Québec, 2012 SCC 12 the Supreme Court required administrative decision-makers to consider Charter values as part of their decision-making process. I argue that Charter values and Charter rights have different functions, with values operating essentially as relevant considerations to be grappled with by an administrative decision-maker and rights imposing harder legal constraints on decision-makers.

Charter Values

As far as Charter values are concerned, Vavilov suggests that the decision-maker must engage in responsive justification, grappling meaningfully with relevant Charter values. In other jurisdictions, such as Australia and New Zealand, the point is understood similarly: fundamental rights must be given proper consideration in the decision-making process (“The Doré Duty”, n. 32 and p. 313). Charter values are most useful where there is no direct infringement of a Charter right, for instance where a corporate entity invokes a Charter protection (as in Loyola High School v. Quebec (Attorney General), 2015 SCC 12) or a decision frustrates the objectives of the Charter (as in A.B. v Northwest Territories (Minister of Education, Culture and Employment), 2021 NWTCA 8, now on reserve at the Supreme Court of Canada).

Webber Academy is a good example of the utility of values and of an administrative decision-maker giving proper consideration to them. Here, Muslim students in a secular school successfully brought a discrimination claim in a provincial human rights tribunal based on the school’s refusal to provide a space for active prayer. The school claimed that the tribunal’s decision unreasonably interfered with freedom of conscience and freedom of association. Couching its analysis in terms of values, the Alberta Court of Appeal rejected the school’s arguments. As far as freedom of conscience was concerned, the tribunal did not err by (as was alleged) using the wrong line of Charter jurisprudence:

The Tribunal reviewed numerous Supreme Court of Canada authorities that discuss how it was to consider Charter values, the purpose of the freedom of religion, the principles to be followed when there is an alleged interference with one’s freedom of religion, and the evidentiary burden that must be met by a party alleging such interference. The Tribunal, citing Saguenay, understood that the freedom of religion also includes the freedom “not to believe, to manifest one’s non-belief and to refuse to participate in religious observance”: Rehearing Decision at paras 191-92. The Tribunal also understood that Webber Academy had to first demonstrate that it had a practice or belief having a nexus with religion before the Tribunal could consider whether there was evidence of interference with the observance of that practice.  In this case, the Charter value at issue is related to a specific Charter right and therefore, it was appropriate for the Tribunal to be guided by jurisprudence considering infringement of such right because the same general analytical framework applies. In conducting its analysis, the Tribunal properly considered the test outlined by the Supreme Court in Amselem where the Court was dealing with an alleged infringement of rights and explained that in order to find an infringement of the freedom of religion, a court or tribunal must (i) be satisfied that the complainant’s belief is sincere, and (ii) find that the complainant’s ability to act in accordance with his or her beliefs has been interfered with in a manner that is more than trivial or insubstantial: Amselem at paras 56-59 (at paras. 57-58).

Put simply, the tribunal had given due consideration to the things it ought to have considered. Notice that the focus on Charter values allowed the appellant significant scope to make freedom of conscience arguments: as Kislowicz and Koshan explain, it is not clear (1) that Webber Academy has Charter protection in its own right (as a corporate entity), (2) whose beliefs amongst the student body, parents of students and management should count in any Charter analysis and (3) how to go about determining whether an interference with freedom of conscience is trivial or insubstantial. Pitching the argument at the level of Charter values meant that the parties, the tribunal and the Court of Appeal could avoid the doctrinal technicalities of the Charter jurisprudence.

Similarly, the tribunal’s analysis of freedom of association, where the school made an argument inspired by rather than grounded in Charter jurisprudence (at para. 72), was reasonable:

Based on the evidentiary record, we conclude that accommodating the Students’ need to access quiet, private spaces in order to pray did not, and would not have interfered with the appellant’s section 2(d) Charter values. The appellant and the entire Webber Academy school community were able to continue to freely associate with one another in a non-denominational educational environment that was welcoming of all faiths and cultures (at para. 83).

Again, the tribunal had properly considered what it ought to have considered, grappling meaningfully with the relevant Charter values. Now, it might be objected that it is inappropriate to permit such doctrinal looseness, on the basis that legal analysis should focus on the text of the Charter. Remember, though, that there is a quid pro quo: there is greater scope to make arguments based on Charter values, but those arguments necessarily have less force than an argument based on Charter rights. And, ultimately, the goal is to ensure that administrative decision-makers can engage with fundamental principles of Canadian constitutional law without having “textbooks on human rights law at their elbows” (R (Begum) v. Denbigh High School, [2006] UKHL 15 at para 68); this has been a policy of Canadian public law for at least 20 years (Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 SCR 504) and the focus on Charter values is entirely consistent with it.

Charter Rights

As far as Charter rights are concerned, in cases subsequent to Doré, most notably Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, the Supreme Court insisted that where Charter rights are engaged, “the proper inquiry is whether the decision-maker has furthered his or her statutory mandate in a manner that is proportionate to the resulting limitation on the Charter right” (at para. 78). This requirement of making Charter-compliant decisions was, as I have written, further underscored by Vavilov:

The thick conception of reasonableness review developed in Vavilov will, in addition, ensure meaningful judicial oversight of any alleged Charter infringements, for in assessing the reasonableness of decisions touching on the Charter, reviewing courts will determine whether the decision was justified with respect to the legal and factual constraints on the decision maker, particularly whether the decision adequately responds to the stakes for and submissions of the parties. Where the Charter is in play, the burden of justification will be a heavy one, with administrative decision makers required to demonstrate that they gave serious consideration to the relevant Charter implications, justifying the balance struck in light of the effect on the individual and the availability of alternative means of achieving the same objective.

Now, where a decision-maker has given reasons for decision in respect of a Charter right, the two steps will merge (“Doré Duty” at p. 313), as both will be assessed by reference to the decision-maker’s reasons. Where a decision-maker has demonstrated that its decision is consistent with a Charter right, it will follow of necessity that the decision-maker has discharged the Doré duty to grapple with Charter values.

These procedural and substantive aspects of Charter rights were appreciated by the Ontario Court of Appeal in Lauzon. Here, a Justice of the Peace was found to have committed misconduct by writing a strongly worded article in the National Post about deficiencies she had observed in bail court. A majority of the disciplinary panel subsequently recommended that she be removed from office. The Court of Appeal found that this was an unreasonable sanction. The Charter was not the central focus of the decision (which analyzed various flaws in the panel’s analysis) but Lauwers JA did comment on Doré, as now understood post-Vavilov:

The Panel was required to undertake a robust analysis of the impact of its proposed disposition on JP Lauzon’s rights. To structure this analysis, the Panel was required to undertake three inquiries: first, to assess the negative or deleterious effects that the removal recommendation would have on the exercise of right asserted by JP Lauzon (on the assumption that the recommendation would be accepted by the Attorney General and implemented by Cabinet) as well as any collateral effects, for example, creating a chilling effect on the rights of others; second, to assess the positive effects or benefits of that disposition in terms of the public good; and third, to undertake the proportionality analysis by assessing, for example, whether the disposition involves means that are always impermissible, whether the disposition is needed to achieve the good sought, or whether the deleterious effects or costs imposed by the disposition are out of proportion to the public good to be achieved. The Panel did not do that work, and it is not up to this court, in an effort to salvage the disposition, to reconstruct what the Panel’s approach would have been. It is not the reviewing court’s function to fill a “fundamental gap” in a tribunal’s reasoning by mining the record (at para. 151).

This is a very good explanation of what an administrative decision-maker must do, in its reasons, to demonstrate that it has made a Charter compliant decision that, of necessity, will also demonstrate meaningful grappling with Charter values. Where a Charter right is in play, rather than simply a Charter value, the standard of justification will be more demanding.

Does this mean, as Justice Stratas asked me during our OBA Annual Update a few weeks ago, that some decision-makers will be held to higher standards than others? I would venture a qualified but firm “no”. Regardless of the institutional setting, a decision-maker must be responsive and engage in meaningful grappling with the key arguments, issues and interests. Any decision-maker infringing someone’s Charter rights will have to address the points Lauwers JA identifies. However, the decision-making context is nonetheless important. A lengthy hearing before a sophisticated administrative tribunal will, all things considered, throw up a lot of arguments, issues and interests for the tribunal to address; failure to justify the outcome in terms of those arguments, issues and interests will lead a tribunal into unreasonableness (see Mason, noted here). In that sense — but that sense only — the bar is higher for a disciplinary panel than a front-line decision-maker. Here, the arguments before the tribunal were intricate, the issues complex and the interests extremely important: its reasons had to reflect responsiveness to what had been argued before it (and, in the Court of Appeal’s view, they did not).

Doré has come in for much criticism over the years (and I was an early adopter in that regard) but I think the jurisprudence has evolved in a satisfactory way. Where Charter values are at issue, the decision-maker must engage in responsive justification and demonstrate meaningful grappling with the relevant values. This duty is essentially procedural in nature. Where, however, a Charter right is engaged, the decision must respect the constraints of the Charter; demonstrating that this is so will necessarily require meaningful grappling with the Charter right at issue (and thus any relevant Charter value). This is perhaps not the system I or anyone else would have designed from scratch but it seems to me to be stable and workable (much more so than I thought when Doré was decided).

This content has been updated on October 24, 2023 at 10:35.