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Are We Losing Touch with the Charter? A Case Study of Loyola v. Quebec (Attorney General)
by
James Wilson
A thesis submitted in conformity with the requirements for the degree of Master of Laws
Faculty of Law
University of Toronto
© Copyright by James Wilson 2018
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Are We Losing Touch with the Charter? A Case Study of Loyola v. Quebec (Attorney General)
James Wilson
Master of Laws
Faculty of Law University of Toronto
2018
Abstract
In Doré v. Barreau du Quebec (2012) and Loyola High School v. Quebec (Attorney General)
(2015), the SCC sets aside the proportionality test for the judicial review of administrative
decisions that implicate the Canadian Charter of Rights and Freedoms. This thesis provides a
framework for critically assessing this approach (including its central premise, that the Charter
does not apply in this context), and argues that, regardless of the standard of review (i.e., degree
of deference), judicial review in this context should be conducted by reference to the Charter (as
the criterion of review), using the proportionality test (as the form of review), emphasizing that
attention to the state’s objectives (and the other steps of the proportionality test) provides a more
transparent framework for reconciling competing interests in public law (a coherence function),
while signaling when constraints on rights originate in a statutory-policy framework rather than
its implementation (a signaling function).
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Acknowledgments I thank Lorraine Weinrib, my thesis supervisor. She considered the mix of questions I hoped to
address in my thesis and made the invaluable suggestion that I should organize my ideas into a
case study of Loyola High School v. Quebec (Attorney General). In conversation and in close
attention to my drafts, she provided critical guidance and encouragement. In the context of my
master’s studies, I explored aspects of my argument in courses taught by Peter Benson, Jutta
Brunnée, Mohammad Fadel, Kerry Rittich, and Ernest Weinrib, and I thank each of them for
their incisive comments on my work. Jess Eisen, Michael Trebilcock, and Jacob Weinrib kindly
read proposals for study involving the arguments in this paper and provided helpful comments,
as did Léa Briere-Godbout (who also reviewed a draft of my outline and bibliography) and Nadia
Lambek. My heartfelt thanks to all of these individuals for their advice and encouragement.
I gratefully acknowledge the support of my master’s studies by a Nathan Strauss Q.C. Graduate
Fellowship in Canadian Constitutional Law and a Houlden & Morawetz Graduate Scholarship.
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Table of Contents Acknowledgments .......................................................................................................................... iii
Table of Contents ........................................................................................................................... iv
Introduction ......................................................................................................................................1
Public Law Adjudication & the Components of Judicial Review ..............................................8
1.1 The Components of Judicial Review ...................................................................................8
1.1.1 The Standard of Review ...........................................................................................9
1.1.2 The Criterion of Review ........................................................................................10
1.1.3 The Form of Review ..............................................................................................18
1.2 Putting the Pieces Together ...............................................................................................23
The Vexed Status of Values in Administrative Law .................................................................23
2.1 The Role of Values in Administrative Law .......................................................................24
2.2 The Role of Charter Rights in Administrative Law ...........................................................28
2.3 The New Approach: “Charter Values” in Administrative Law .........................................30
2.3.1 Multani v. Commission scolaire Marguerite‑Bourgeoys ......................................32
2.3.2 Doré v. Barreau du Québec ...................................................................................39
The Religious Education Cases .................................................................................................54
3.1 Overview of the Argument ................................................................................................54
3.2 Background to the Cases ....................................................................................................59
3.2.1 The Ethics and Religious Culture Program ...........................................................59
3.2.2 The Freedom of Religion .......................................................................................61
3.3 The Public School Case: S.L. v. Commission scolaire des Chênes ...................................62
3.4 The Private School Case: Loyola High School v. Quebec (Attorney General) .................65
3.4.1 The Facts of the Case .............................................................................................65
3.4.2 Affirming the Doré Test ........................................................................................69
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3.4.3 Applying the Doré Test .........................................................................................72
3.4.4 The Dissenting Reasons .........................................................................................78
3.5 Analysis: Choosing a Form of Review for Public Law Adjudication ...............................80
3.5.1 The Signaling Function ..........................................................................................81
3.5.2 The Coherence Function ........................................................................................82
Conclusion ................................................................................................................................86
Bibliography ..................................................................................................................................88
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Introduction The adjudication of claims arising under the Canadian Charter of Rights and Freedoms1 is
sometimes credited with stability because of the consensus that has developed in this context
around the application of the proportionality test.2 The Supreme Court of Canada (“SCC” or the
“Court”) developed its version of this test to apply section 1 of the Charter, which 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”.3
Accordingly, the premise for applying the proportionality test in Canada is that the government
may impose limitations on rights if its objectives are sufficiently important, and if the means
chosen are rationally connected to the objectives, minimally impairing of the claimant’s rights,
and proportional in effect.4
The reality of the Canadian experience is more complicated, however, because the Court has
adopted a distinctive approach to considering whether infringements of the Charter are
justifiable in the context of administrative decisions involving the exercise of discretion. Nearly
thirty years ago, in Slaight Communications v. Davidson5 (1989), the Court decided that the
Charter applied to administrative decisions for the straightforward reason that the Charter is the
supreme law of Canada.6 More recently, the Court has expanded the jurisdiction of
administrative decision-makers to determine rights claims (and issue remedies) under the
1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
2 See e.g. Vicki C. Jackson, “Constitutional Law in an Age of Proportionality” [2015] 124:8 Yale LJ 3094. See also, Lori Sterling, “The Charter's Impact on the Legislative Process: Where the Real ‘Dialogue’ Takes Place” (2007-8) 23 N.J.C.L. 139 at 140-141 (drawing attention to the processes by which governments internally assess laws and policies for Charter compliance).
3 Charter, supra s 1.
4 R. v. Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200 at paras 69-71 [Oakes].
5 [1989] 1 S.C.R. 1038 [Slaight Communications].
6 Ibid at 1077-1078.
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Charter,7 while putting into question again whether the Charter actually applies to
administrative decisions involving the exercise of discretion.8 In connection with these
developments, the Court has relaxed the approach that administrative decision-makers are
expected to follow in applying the proportionality test, and has relaxed the judicial oversight of
these types of decisions.9 The Court has determined that, where a discretionary administrative
decision implicates the Charter,10 the decision-maker should “proportionately balance the
Charter protections —values and rights — at stake in their decisions with the relevant statutory
mandate”, in order “to ensure that they are limited no more than is necessary given the applicable
statutory objectives”.11 As a matter of judicial review, the courts should treat these decisions as
“reasonable” as long as “the decision-maker has properly balanced the relevant Charter value
with the statutory objectives”.12
I think these changes are a mistake. In this paper, I defend the idea that the Charter applies to
administrative decisions and that the courts should use the proportionality test to determine
whether they comply with section 1 of the Charter. I take up these questions within a narrow
compass. I provide a critical reading of the reasons the Court has given for the new approach, a
sketch of some of the ambiguities that arise from it, and a description of some of the possible
consequences, focusing on two cases involving the intersection of religious freedom with
7 See R. v. Conway, 2010 SCC 22 at paras 3-7, 78-82.
8 As discussed in Part 2.3, below, the new approach to the judicial review of these types of decisions is predicated on the idea that the Charter does not formally apply in this context. See Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 at paras. 84-139, esp. at paras. 100-136, Deschamps and Abella JJ, concurring [Multani] (proposing a new approach for the judicial review of adjudicative administrative decisions on this basis); Doré v. Barreau du Québec, 2012 SCC 12 at paras. 2-7, 22-42, and 55-58 [Doré] (endorsing and adopting the new approach); and Loyola High School v. Quebec (Attorney General), 2015 SCC 12 at para. 35 [Loyola] (applying the new approach to the judicial review of discretionary administrative decisions generally). See further note 15, infra.
9 See Doré, supra at paras. 55-58; Loyola, supra at para. 35ff.
10 As discussed in Part 2.3, below, one of the ambiguities about the new approach is determining when it is triggered. Sometimes the test is said to be triggered by a violation, limitation, impairment, or interference with Charter rights, but the Court also suggests that it may be triggered when Charter rights and constitutional values are “implicated” or “involved” in a decision. See Doré, supra at paras. 6-7, 55-58; compare ibid at paras. 34, 45, 51-54, and 57.
11 Loyola, supra at paras. 4, 35ff; Doré, supra at paras. 55-56.
12 Loyola, supra at para. 37ff; Doré, supra at paras. 57-58.
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education in Québec: S.L. v. Commission scolaire des Chênes13 (2012) (involving a public
school) and Loyola High School v. Quebec (Attorney General)14 (2015) (involving a private
school).15 In working through these materials, I make three basic arguments, described in more
detail below: that the premises for adopting the new approach are mistaken; that ambiguities in
how the approach is formulated bedevil its application; and that endorsing the new approach
involves denying important insights about the proportionality test and its resources.
The premises for the adopting the new approach involve a mix of legal, conceptual, and practical
ideas, including that the Charter does not apply in this context; that the Charter and
administrative law are distinct regimes that ought to be kept separate;16 and that, as a matter of
judicial review, the new approach will be more predictable and consistent than the
proportionality test. The ultimate premise for the new approach is that a deferential stance
toward administrative decision-makers requires the relaxation of each of the three components of
judicial review: the standard of review, the criterion of review, and the form of review. I suggest
that all of these ideas are mistaken. I argue that the Charter applies to legislatively-authorized
activity, and that this includes administrative decisions.17 I suggest that constitutional law and
administrative law are complementary as well as distinct; they overlap in their application to
state activity, but the pertinent difference between them is that they operate within different
normative frameworks, and when the Charter is implicated in a case, it should be applied. As a
13 2012 SCC 7 [SL].
14 Supra note 8.
15 Given my narrow focus, I do not discuss the Court’s subsequent application of the new framework to the judicial review of administrative decisions involving the exercise of discretion, although I will suggest that the basic conceptual tensions I explore in this paper continue to divide the court. See especially Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 [LSBC v. TWU], in which the majority maintains the new approach despite separate concurring reasons from McLachlin CJ and Rowe J and dissenting reasons from Côté and Brown JJ, each of which puts into question whether it makes sense to deny that the Charter and the proportionality test apply in this context. See also the companion case to LSBC v. TWU, Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33; Groia v. Law Society of Upper Canada, 2018 SCC 27 at paras. 111-120; and Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at paras. 136-155, Moldaver J, concurring in part.
16 Paradoxically, a competing premise for the new approach is that all of public law adjudication involves attention to fundamental values such as respect for human dignity (discussed in Part 1.1.2, below).
17 See Charter, supra s. 32.
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practical matter, I suggest that abandoning the proportionality test for the purposes of judicial
review generates confusion, not clarity. Finally, I argue that a deferential stance toward
administrative decision-makers is possible to achieve without setting aside the Charter and the
proportionality test, by adopting a more flexible standard of review and allowing decision-
makers more flexibility in the forms of analysis they themselves use, at first instance.18
Ambiguities in how the Court has formulated the new approach bedevil its application. The test
blurs the distinction between individual rights and the values underpinning individual as well as
collective interests, without clarifying how the courts should identify these interests and resolve
the tensions among them. The test is framed both as a matter of balancing individual and
collective interests with the state’s objectives (suggesting a preliminary balancing of individual
and collective interests, and then a process of mutual adjustment between these interests and the
state’s objectives, to get the balance right) as well as a matter of minimal impairment (treating
the state’s objectives as fixed). Depending on how these concepts are applied, the test either
favours claimants or the state, implicitly, by requiring the claimant to make adjustments to her
interests (without determining whether the state’s objectives are sufficiently compelling to justify
this), or by requiring the state to make adjustments to its objectives (again, without determining
whether its objectives are sufficiently compelling to justify imposing limitations on rights), or
both. Moreover, treating the decision-maker as obligated to strike a balance in this context
(rather than potentially justified in imposing a limitation on a right), can obscure the source of
limitations on rights. The source of the limitation on rights may be the decision-maker’s statutory
objectives, rather than her exercise of discretion, in which case the statutory framework should
be considered in its own right.
Finally, endorsing the new approach involves denying important insights about the alternative.
The proportionality test serves two important functions in the context of judicial review:
coherence and signaling. As a matter of coherence, compared with the new approach, the
proportionality test provides a more transparent framework for identifying the distinctive
18 As David Dyzenhaus puts it, judicial review can include “checking to see whether the decision maker has framed the issue in the right way”. See “Proportionality and Deference in a Culture of Justification”, in Grant Huscroft, Bradley W. Miller & Grégoire Webber, eds., Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge: Cambridge University Press, 2014) 234 at 251 [Dyzenhaus, “Proportionality and Deference”].
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interests that are at stake in public law adjudication, how they relate to each other, and how the
tensions that arise among them might be resolved in a coherent way.19 As a matter of signaling,
considering each step of the proportionality test, from the threshold matter of the decision-
maker’s objectives to the scrutiny of the means chosen to pursue those objectives (with attention
to the rational basis for the decision; the alternatives to the decision, if any; and the effects of the
decision), signals when the constraints of the decision-maker’s objectives are the source of the
limitations on the claimant’s rights, rather than an exercise of discretion. In other words, using
the proportionality test can help determine when a reasonable decision discloses an unreasonable
statute or policy.
I rely on two premises for my argument, already touched upon. My first premise is that public
law adjudication has a distinctive character, involving shared interests on both sides of each case.
When the state pursues a public purpose, then the rights claimant against the state also partakes
of the public interest that is being promoted by the state, by virtue of being a member of the
public. Conversely, the state partakes of the claimant’s interest when it takes an interest in the
claimant’s capacity to exercise her rights (indeed as it must, when the claimant’s rights are
protected by the constitution). I refer to this as the “shared interest dynamic” of public law
adjudication. The extent to which the interests are shared in a given case will of course vary, and
sometimes be attenuated, but identifying these interests and demonstrating how they relate to
each other is an important part of public law adjudication. The forms of reasoning that we adopt
in this context can either obscure these interests, and how they connect, or bring them to light
and provide a transparent framework for demonstrating how they relate to each other, and for
making arguments about how the tensions among them may be resolved in a coherent way.20
19 I do not say that a given approach to judicial review will generate a “correct” result, only that applying the proportionality test can help to generate a “compelling” result, because it provides a more transparent framework for identifying the distinctive issues that are at stake in these kinds of cases and making arguments for how they cohere with each other. The commitment to coherence in this sense is egalitarian. It reflects the ideal that roughly similar legal situations should be treated roughly the same, but also that situations that are different should be treated as if they are part of the same conceptual family, such that everyone who is subject to the law is treated roughly the same. This is consistent with the idea that courts in a constitutional democracy operate in a “culture of justification”. For the idea that constitutional democracies are “cultures of justification”, see e.g., Dyzenhaus, “Proportionality and Deference”, supra note 18 at 237ff (characterizing a culture of justification as one in which state power is based on the cogent justification of its exercise, not fear).
20 The stronger form of these claims is that the state is under a duty to pursue public purposes (regardless of what a majority might wish to do with its legislative authority), and that the state is also under a duty to secure the
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The second premise for my argument is that we can distinguish among three components of
judicial review (despite how often they are grouped together in a catch-all reference to the
“standard of review”). I distinguish among the standard of review, the criterion of review, and
the form of review for the judicial review of administrative decisions. I make limited
observations about the standard of review (i.e., the degree of scrutiny given to the reasons of the
administrative decision-maker). I spend more time defending the idea of Charter justification as
the criterion of review (i.e., the reference point for deciding whether a decision ultimately stands
or falls). My ultimate focus is defending the proportionality test as the appropriate form of
review (i.e., the legal test that the reviewing court should use to apply the criterion of review, on
the chosen standard of review, to the decision-maker’s reasons for decision).21
In Part I, I set out the building blocks for the discussion. I provide a sketch of the three
components of judicial review and alternative conceptions of each component. I suggest why a
flexible standard of review, the application of the Charter as the criterion of review, and the
proportionality test as the form of review are appropriate to the distinctive character of public
law adjudication.
In Part II, I critique the Court’s reasons for adopting the new approach to the judicial review of
administrative decisions involving the exercise of discretion. I focus on two basic ideas and how
they come into tension in the leading cases. The first idea is that the principles, concepts, and
conditions in which the claimant can exercise her rights (i.e., to secure a condition of equal and reciprocal freedom). Defending this stronger claim lies outside the scope of this paper (but for additional discussion of its implications, see notes 65 and 335, infra). Accordingly, the “shared interest dynamic” described in the text is stated in more general terms, as a commonly observed aspect of public law and public law claims, together with the suggestion that identifying these shared interests and how they relate to each other is an important part of public law adjudication. In other words, whether one thinks that public law adjudication has to do with identifying the will of the legislature (and that arguments about the proper purposes of legislation should be resolved as a matter of politics) or that public law adjudication has to do with constraining the will of the legislature (and that arguments about the proper purposes of legislation should be resolved as a matter of law), in either case one can expect the courts to identify these points of tension (i.e., between legislative purposes and rights) as a foundation for making arguments about how they should be resolved. I discuss these different conceptions of public law adjudication in Part 1, below.
21 By distinguishing among these components, I do not mean to suggest that we can ignore their inter-relationships. One of the central themes of this paper is that the form of review can either facilitate or frustrate the application of the criterion of review. The form of review also has a substantive component. For example, in note 65, infra, I discuss how different formulations of the proportionality test actually reflect different conceptions of Charter justification as a criterion of review.
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categories of administrative law implicate legal-political values such as respect for dignity,
fairness, and equality. The second idea is that the Charter implicates these values as well, but
within a different normative framework; that it specifies rights that are associated with these
values (e.g., the freedom of religion); that it stipulates the terms on which these rights are
guaranteed (i.e., subject to the limitations clauses of the Charter); and that the proportionality
test provides a framework for applying these concepts. I focus on how these ideas come into
tension in three cases: Slaight Communications (applying the Charter to administrative decisions
for the first time), Multani v. Commission scolaire Marguerite-Bourgeoys (2006) (in which
Deschamps and Abella JJ, concurring, deny that the Charter applies to adjudicated
administrative decisions, and propose a new approach for judicial review in this context) and
Doré v. Barreau du Québec (2012) (in which the Court adopts and develops the new
approach).22 I will argue that denying that the Charter applies in this context contradicts the first
principles of administrative law (that administrative decision-makers are creatures of statute) and
the first principles of constitutional law (that the Charter is the supreme law of Canada),23 and I
will suggest that the new approach is flawed as a practical matter, for the reasons set out above.
In Part III, I critique the application of the new approach with a close reading of the religious
education cases, SL and Loyola.24 These cases (Loyola in particular) illustrate how the Court has
broadened the new approach (by applying it to discretionary administrative decisions generally)
while also narrowing it (by framing the approach in a way that parallels, more than in the past,
aspects of the proportionality test). At the same time, these cases illustrate the ambiguities that
persist in the new approach, and why they are problematic. The cases involve the question of
whether a provincially-mandated educational program about ethics and religious culture, taught
from a neutral/non-religious perspective, violates the religious freedom of parents and children in
a public school setting (in SL), and the religious freedom of persons wishing to offer and receive
religious instruction in a private school setting (in Loyola), by interfering in the inter-family and
22 See Slaight Communications, supra note 5; Multani, supra note 8; Doré, supra note 8.
23 See Dunsmuir v. New Brunswick, 2008 SCC 9 at paras. 27-31 [Dunsmuir] (stating the first principles of administrative law) and Slaight Communications, supra note 5 at 1077-1078 (stating the first principles of constitutional law in this context).
24 SL, supra note 13; Loyola, supra note 8.
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inter-communal transmission of religious teachings. These are complex cases, and I will not
argue the merits of them. Rather, I will suggest that the new approach to resolving these types of
cases obscures the interests that are at stake in them. Public policies promoting understanding
and respect for difference and religious practice involve a paradigmatic expression of the shared
interest dynamic of public law adjudication, because these policies may constrain the free
exercise of religion in a school setting while at the same time securing the conditions in which
everyone may be free to exercise their beliefs, in a much broader sense. I will suggest that the
central question in these cases was whether the state was implementing a policy that benefited
the claimants along with everyone else, and whether the policy (rather than the implementation
decisions) is justifiable under the Charter. I will suggest that the Court’s new approach to the
judicial review of administrative decisions obscures these questions, whereas the proportionality
test could have brought them into focus. Part IV concludes.
Public Law Adjudication & the Components of Judicial Review
In this Part, I provide a sketch of the components of judicial review, describe alternative
conceptions of each component, and suggest why a flexible standard of review, the application of
the Charter as the criterion of review, and the proportionality test as the form of review are
appropriate to the distinctive character of public law adjudication.
1.1 The Components of Judicial Review Judicial review involves three components. The first component is the standard of review, or the
degree of scrutiny the court adopts to review the decision-maker’s reasons. The second
component is the criterion of review, or criterion of justification, meaning the conceptual reasons
for why the court ultimately decides that a decision should stand or fall. The third component is
the form of review, or method of analysis (or simply the legal test), that the court uses to
determine whether the criterion of review is satisfied.
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The three components of judicial review are often lumped together by reference to a single
moniker, the “standard of review”.25 One of the reasons for distinguishing among them is to see
how they are combined in different ways in the cases, sometimes in unexpected ways.26 Another
reason is to consider the possibility of new combinations. As David Dyzenhaus reminds us,
“there is not one past of the rule of law; rather, there are rival pasts, and the question then arises
how these different pasts will affect the future.”27 Adopting a deferential standard of review, for
instance, does not require that we abandon Charter justification as the criterion of review, or the
proportionality test as the form of review, and I ultimately suggest that regardless of the standard
and criterion we endorse, the proportionality test is the preferable form of review for public law
adjudication.
Yet another reason for distinguishing among these components is to remind us that none of them
necessarily determines the form of analysis that an administrative decision-maker should use (as
opposed to the reviewing court). In some contexts, it will be appropriate for decision-makers to
use the proportionality test, but in others (for example, when they are not required to give
detailed reasons), they may be afforded more flexibility in how they reach their decisions.28
1.1.1 The Standard of Review
The standard of review refers to the degree of judicial scrutiny of the decision-maker’s reasons.
The concept is contested. In Dunsmuir,29 the SCC reduced what were then three standards of
review (patent unreasonableness, reasonableness, and correctness) to two (reasonableness and
25 Thus the cases and commentary abound with references to the administrative law “standard of review” and the constitutional law “standard of review”, while combining various conceptions of the possible standards, criteria, and forms of review that may be applied in this context.
26 See e.g. my discussion of Lake v. Canada (Minister of Justice), 2008 SCC 23 in note 135, infra.
27 David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality, 2nd ed (Oxford: Oxford University Press, 2010) at 260.
28 In either event, the decision-maker’s reasons should be amenable to judicial review, in the sense of disclosing relevant findings of fact and cogent reasons for decision.
29 Supra note 23.
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correctness), and the Court has recently indicated that it will reconsider these standards.30 The
judicial activity reflects the basic problem of defining a deferential standard of review. There is
no reliable way to take a consistent approach, except by applying a standard of correctness.
The alternative is to take a more flexible approach. For example, in Dunsmuir, Binnie J suggests
that we imagine reasonableness as a “big tent”, and think in terms of degrees of deference,
depending on the nature of the decision and the context.31 Others have suggested that we think of
deference as something that is earned by the decision-maker whose decision is under review, by
the giving of cogent reasons.32 I will not discuss the standard of review in this paper beyond
suggesting flexibility as an ideal, given the diversity of administrative decision-makers and the
issues that come before them.
1.1.2 The Criterion of Review
The criterion of review refers to the criterion of justification, or the conceptual reasons for why
an administrative decision should ultimately stand or fall. I describe three alternatives. First,
administrative law justification, by which I mean testing the exercise of discretion by reference
to administrative law principles, concepts, and categories. Second, Charter justification, by
which I mean testing the exercise of discretion by reference to the Charter, including its
guarantees and limitations clauses (the approach adopted in Slaight Communications). Third,
“Charter values” justification, by which I mean testing the exercise of discretion by reference to
the values that the Charter is said to express (the approach adopted in Doré). I will describe
these in more detail, but I should emphasize that I am proposing models for addressing the
tensions involved in choosing a criterion of review. The reader may disagree with my
specifications.
30 Minister of Citizenship and Immigration v. Vavilov, 2017 FCA 132, leave to appeal to S.C.C. granted, 37748 (May 10, 2018) (“The Court is of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in [Dunsmuir], and subsequent cases”).
31 Dunsmuir, supra note 23 at paras. 135-141, 144, Binnie J, concurring.
32 See e.g. David Mullan, “Administrative Tribunals and Judicial Review of Charter Issues after Multani” (2006) 21 NJCL 127 at 147-149, citing David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed, The Province of Administrative Law (Oxford: Hart Publishing, 1997) at 279 [Dyzenhaus, “The Politics of Deference”].
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1.1.2.1 Administrative Law Justification
By administrative law justification, I mean the common law of judicial review. The premise for
administrative law justification is that every lawful exercise of public authority must be
authorized by statute, because the rule of law constrains the exercise of public authority to what
is authorized by statute, but that within this framework, the dignity and equality of persons who
are subject to public authority should be respected. My references to dignity and equality may
sound anachronistic in this context, but they reflect a burgeoning scholarly and judicial interest
in the value commitments that are implicit in administrative law theory and practice (and that
provide one of the points of reference for the debates about judicial review discussed in this
paper).33
As a matter of practice, administrative law justification involves constraining administrative
decision-makers to the good faith performance of their statutory purposes, in a manner that
recognizes the dignity and equality of the persons who are subject to their jurisdiction, through
the administrative law doctrines of procedural fairness as well as review of discretion.34
Accordingly, administrative law justification provides a bulwark against the arbitrary exercise of
public authority, with an essential caveat: it is circumscribed by the statutory framework for
decision, by its ultimate purpose (statutory interpretation) and its ultimate premise (the doctrine
of parliamentary supremacy, or giving effect to the clearly expressed will of the legislature). 35
33 I discuss this set of ideas in more detail in Part 2, below. See generally Lon L. Fuller, The Morality of Law, Rev. ed. (New Haven: Yale University Press, 1969), ch 6; David Dyzenhaus & Evan Fox-Decent, “Rethinking the Process/Substance Distinction: Baker v. Canada” (2001), 51 UTLJ 193 at 238; and Geneviève Cartier, “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, 2004) 61 at 70, n 31 and 73, 76, 80 [Dyzenhaus, The Unity of Public Law]. Compare e.g. Lorraine E. Weinrib, “Human Dignity as a Rights-Protecting Principle” (2004) 17 NJCL 219 (discussing attention to human dignity in the modern constitutional law paradigm).
34 See e.g. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker], discussed in Part 2.1, below.
35 As David Dyzenhaus and Evan Fox-Decent put it, “the common law has ultimately the same extra-legal guarantee against legislative disruption as general moral sensibilities, for when the common law does have to give way to statute, the remedy for the disruption to its order is to be found outside the law, in the source from which the disruption emanated -- in democratic politics”. See Dyzenhaus & Fox-Decent, supra note 33 at 197. See also, British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 at paras. 57-67, esp. at paras. 58-59 (“This Court has described the rule of law as embracing three principles. The first recognizes that ‘the law is supreme over officials
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1.1.2.2 Charter Justification
Charter justification involves the application of the Charter, in the sense of acknowledging that
the Charter is the supreme law of Canada,36 that it guarantees specific rights, and also that it
sanctions limitations on rights, both in its specification of individual rights as well as in the
general limitations clauses (sections 1 and 7).37 Section 1 of the Charter sanctions reasonable
limitations on rights that can be demonstrably justified in a free and democratic society. Section
7 of the Charter sanctions the deprivation of the right to life, liberty and security of the person in
accordance with the principles of fundamental justice. It follows that Charter justification
involves the integration of the rights of individuals with the activity of the state: freedom does
not trump democracy, and democracy does not trump freedom,38 and the dispensation of justice
may involve the deprivation of life, liberty and security. In other words, the state has to take
Charter rights into account, and the principles of fundamental justice, when its activity
implicates the Charter. For all of these reasons, Charter justification is more demanding of the
state than administrative law justification.39
of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power’ … The second ‘requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order’… The third requires that ‘the relationship between the state and the individual . . . be regulated by law’ ... ¶ So understood, it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation … based on its content. That is because none of the principles that the rule of law embraces speak directly to the terms of legislation. The first principle requires that legislation be applied to all those, including government officials, to whom it, by its terms, applies. The second principle means that legislation must exist. And the third principle, which overlaps somewhat with the first and second, requires that state officials’ actions be legally founded.” The Court cites Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 at 748-749 and Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 71). See also British Columbia (Attorney General) v. Christie, 2007 SCC 21.
36 The Charter is the supreme law of Canada and applies to federally and provincially-authorized activity (Charter, supra ss 52 and 32). Every lawful exercise of public authority must be authorized by law. Accordingly, every lawful exercise of public authority is subject to the Charter. See also Slaight Communications, supra note 5 at 1077-1078.
37 See Charter, supra ss 1 and 7 as well as ss 4(2), 6(3) & (4), 8, 9, 11, 12, 13, 15(2), 24(2), and 33.
38 See e.g. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at paras. 80-81 [Big M Drug Mart] (“The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the legislature and ensures they are consonant with the guarantees enshrined in the Charter” at 81).
39 For a discussion of alternative conceptions of Charter justification, see note 65, infra.
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1.1.2.3 The New Approach: “Charter Values” Justification
Charter values justification is the term I will use to describe the Court’s handling of the Charter
and the values it reflects in the specific context of administrative decision-making involving the
exercise of discretion. Exploring how this concept comes into shape is one of the subjects of this
paper, so I will provide just an outline of the concept and its development here.40
To begin with, it should be apparent that administrative law justification and Charter
justification overlap with each other, but they are distinct. On the account presented here, they
share a normative commitment, to human dignity, but they operate within different normative
frameworks. Administrative law justification involves the interpretation and application of the
law, but Charter justification involves the interpretation and application of “the supreme law of
Canada”.41 The ultimate criterion of justification in the context of administrative law is the
clearly expressed will of the legislature, whereas the ultimate criterion of justification in the
context of constitutional law is the integration of rights and limitations on rights in the terms
articulated in the constitution.
A good example of this tension involves the concept of procedural fairness (e.g., the right to be
heard in some form in administrative decision-making fora).42 Courts working with the
principles, concepts, and categories of administrative law have established many of the
entitlements of procedural fairness that we understand to foster respect for dignity in the exercise
of public authority. When the Charter does not apply to an administrative decision (i.e., when
40 An alternative approach to thinking about justification in public law, not considered here, is to suggest that constitutional states are “cultures of justification”, in which state power is legitimized by its cogent justification, through the giving of reasons that are compelling to the persons affected by them. On my understanding, this idea can be specified in different ways according to what I am calling the criterion of justification. For example, it might be developed in a way that parallels the concept of administrative law justification, if we decide that a culture of justification ultimately reflects the political arrangements of majority rule. It might also be developed in a way that parallels the concept of Charter justification, if we accept that a culture of justification reflects a set of political arrangements in which the government’s activity is legitimate only to the extent that it respects the dignity of the persons who are subject to it. For discussions of the idea of a “culture of justification”, see e.g. Dyzenhaus, “Proportionality and Deference”, supra note 19 at 237ff; compare e.g. Mattias Kumm, “Is the Structure of Rights Practice Defensible? Three Puzzles and Their Resolution”, in Vicki Jackson & Mark Tushnet, Proportionality: New Frontiers, New Challenges (Cambridge: Cambridge University Press, 2017) 51 at 51-52.
41 Charter, supra s. 52.
42 See e.g. Baker, supra note 34.
14
Charter rights are not engaged), administrative law justification can require the state to make
considerable allowances for dignitary interests, although this is always subject to the clearly
expressed will of the legislature.43 Conversely, when the Charter does apply (i.e., when Charter
rights are engaged), the Charter can secure these entitlements in contradiction to the will of the
legislature.44 In other words, administrative law can protect dignitary interests when the Charter
does not apply, and the Charter can secure these interests when it does.
In addition, while I am suggesting that respect for dignity animates the principles, concepts, and
categories of administrative law, and that these can help to illuminate the multidimensional
character of dignity (for example, its links with equality and fairness), the Charter specifies the
dignitary interests to which it applies, including some while excluding others (e.g., by
guaranteeing the rights to free expression, religion, and association, and to life, liberty, and
security of the person, but not to property). The Charter also states the terms on which all of
these rights may be justifiably limited.45 In summary, the frameworks overlap with each other,
but they are distinct.
This account of the relationship between administrative and constitutional law is prosaic, and the
conceptual and practical challenges of dealing with dignitary interests in each tradition animates
the cases under discussion. Indeed, the relationship between these areas of public law raises
complex questions of legal and political theory, and there are various ways of formulating a
“unity of public law” thesis, according to which the same core values animate all of public law.46
The Court’s adoption of a new approach for the judicial review of discretionary administrative
decisions reflects a version of this idea, although its precise conception of the unity of public law
thesis remains ambiguous. I will suggest four options for developing such a thesis and then
describe the Court’s approach, as I understand it. I should note at the outset that elements of
43 Granted that, as a matter of practice, determining the clearly expressed will of the legislature in this context raises a host of interpretative and institutional tensions and is easier said than done.
44 Granted that, as a matter of politics, the legislature can respond to the courts through follow-on legislation as well as by invoking section 33 of the Charter, subject to its limitations and provisos (the “notwithstanding” clause).
45 See note 37, supra.
46 See e.g. the contributions to Dyzenhaus, The Unity of Public Law, supra note 33.
15
these ideas are also expressed in the various academic authorities that come under discussion in
this paper, but a complete account of these ideas lies outside the scope of this paper. Again, my
hope is to present a basic set of models for thinking through these tensions.
The first option is to make a more ambitious claim for the Charter, such that it does the same
work as administrative law. We could argue that the purpose of the Charter is to protect dignity,
and that every exercise of public authority that infringes a dignitary interest should be justified
under the Charter, despite the elevated treatment we typically give the Charter. Because the
Charter applies to legislatively authorized activity, it necessarily applies to administrative
decisions that implicate dignitary interests.47 On this account, there is nothing extra for the
common law of administrative law to do: dignitary interests are covered by the Charter.48
A second option is to make a more ambitious claim for the common law of administrative law,
such that it does the same work as the Charter. We could argue that, as a matter of legal and
political theory, every exercise of public authority that infringes a dignitary interest should be
justified against the underlying purpose of public authority, i.e., to maintain a condition of equal
and reciprocal freedom. On this account, administrative law justification may wholly constrain
the exercise of public authority, regardless of the legislature’s purpose, because of the underlying
purpose of public authority.49 There is nothing extra for the Charter to do, except to identify
certain dignitary interests that are deserving of particular regard in our legal-political system.50
A third option is to make a less ambitious claim for the Charter. We could argue that Charter
justification, like administrative law justification, is ultimately subject to the will of the
47 As discussed further below, applying the Charter in the decision-making context raises distinctive issues, but the basic work is the same, requiring attention to the administrative decision-maker’s statutory purposes (i.e., their grant of authority) and the means chosen for pursuing those purposes (i.e., their decision).
48 But see British Columbia v. Imperial Tobacco Canada Ltd., supra note 35 (suggesting that treating the Charter as subsumed by rule of law principles would make it redundant).
49 For a fascinating indication of this possibility for the contract theory of law and politics, based on the role of the judge in Hobbes’ Leviathan, see David Dyzenhaus, “Hobbes on the Authority of Law” in David Dyzenhaus & Thomas Poole, eds, Hobbes and the Law (Cambridge: Cambridge: University Press, 2012) 186.
50 Compare Doré, supra at para. 35 (“[t]he Charter simply acts as ‘a reminder that some values are clearly fundamental and . . . cannot be violated lightly’”, citations omitted).
16
legislature.51 On this account, again, there is nothing extra for the Charter to do. To constrain the
exercise of public authority in a manner that is consistent with the Charter, we merely need to
extend the common law, to incorporate the Charter’s specific guarantees into the principles,
concepts, and categories of administrative law.
A fourth option is to accept something like the status quo, endorsing the idea that administrative
law justification and Charter justification overlap with each other, but are distinct; that this is a
feature of our legal-political system; and that both criteria of justification have a role to play in
constraining/legitimizing the exercise of public authority. At the same time, we can look for
opportunities to expand our thinking about each of these by reference to the other; for example,
by reflecting on the specification of dignitary interests in the Charter, and the nuances of the
proportionality test, as we develop more sophisticated forms of judicial review.52
The approach that the Court takes is ambiguous as among these alternatives. In Doré,53 the Court
invokes the unity of public law, but in a distinctive way. The Court decides that the Charter does
not actually apply to administrative decisions involving discretionary decisions, for a mix of
precedential, conceptual and practical reasons (discussed below; I suggest they are mistaken).
Nonetheless, the Court suggests that administrative decision-makers are duty-bound to the good
faith performance of their statutory purposes, including the fundamental values of our legal-
political system, including the values expressed in the Charter. Accordingly, administrative
decision-makers are duty-bound to consider “Charter values” in the exercise of public authority.
The Court suggests that, for the purposes of administrative decision-making, all the Charter does
is identify certain dignitary interests that are deserving of particular regard.54
Despite the references to the Charter, the Court is not talking about Charter justification here,
because (according to the Court), the exercise of public authority in this context is not required to
51 See generally Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001).
52 In Part 2.3.2, below, I suggest that John Evans and Geneviève Cartier put forward versions of these arguments in papers that the Court relies upon in Doré, supra.
53 Supra note 8.
54 Ibid at para. 35.
17
be justified by reference to the Charter’s guarantees and limiting provisions (e.g., sections 1 and
7 of the Charter). As a consequence, the reference to “Charter values” appears to blend together
the ideas that individuals have rights, that rights express dignitary and political values, and that
rights may be justifiably limited.55 Accordingly, the idea that administrative decision-makers
should consider “Charter values” in the exercise of their discretion is ambiguous, and demands
closer attention to how the Court proposes this should be done. However, as discussed below,
when Charter values justification is coupled with the new approach, as a form of review, it
remains ambiguous. It is not clear whether, on this conception of public law, the state is justified
in limiting rights (or rather, fundamental values) by taking them into account, by adjusting its
means of pursuing its objectives to take them into account, by adjusting its objectives to take
them into account, or by pursuing objectives that are sufficiently important to limit them.56
55 In Loyola, supra note 8, the Court references all of these ideas when it says that, “[i]n the Doré analysis, Charter values — those values that underpin each right and give it meaning — help determine the extent of any given infringement in the particular administrative context and, correlatively, when limitations on that right are proportionate in light of the applicable statutory objectives” (ibid at para. 36).
56 Matthew Horner raises a complementary set of concerns in his survey of cases using the term “Charter values”, decided before and after Doré. See Matthew Horner, “Charter Values: The Uncanny Valley of Canadian Constitutionalism” (2014) 67 SCLR (2d) 361. To begin with, Horner acknowledges that the term may be used in a commonplace way in the course of purposive interpretation, i.e., in the course of interpreting Charter rights by reference to the values that underpin them (ibid at 362-363). Horner focuses on when the term is used to refer to something justiciable (i.e., “as an enforceable rights-like concept” at 363). He sees it being used in this way in three circumstances. First, when the courts develop the common law by reference to Charter values (he suggests that this makes sense, because the Charter does not formally apply in this context) (ibid at 363, 364-367). Second, when the courts interpret ambiguous legislation, where the interpretation that reflects “the values embodied in the Charter” is preferred to “an interpretation that would run contrary to them” (he suggests that we should focus on rights in this context, because the government should have the chance to demonstrate that limitations on rights are justified) (ibid at 363, 367-371, quoting Hills v. Canada (Attorney General), [1988] S.C.J. No. 22, [1988] 1 S.C.R. 513 at para. 93). Third, the judicial review of administrative decision-making involving the exercise of discretion (he describes Doré as a signal example of this) (ibid at 363, 371-374).
For Horner, the third category of Charter values talk begs the question of whether talking about values instead of rights “actually expands the scope of Charter-based restrictions that a decision-maker must consider when exercising a statutory discretion” (ibid at 374). His concern is that it does. Turning to how the term has been used in the case law, he suggests that it is “frustratingly indeterminate”, but he sees three readings (ibid at 374). First, Charter values as coextensive with rights (ibid at 375). He suggests that, for example in Doré, the Court “is not describing a different body of rights, but is using ... a term of art meaning ‘the application of Charter rights without recourse to a full section 1 analysis’” (ibid at 375). The problem with settling on this conception of Charter values is that the courts are moving beyond it. The second and third readings, based on the cases, are that Charter values “describe a more amorphous version of an enumerated right”, or that they “represent a broad array of principles and values, which underlie the Charter but are not limited by those enumerated rights” (ibid at 375). The problem with the second reading is that “courts applying Charter values may refer to specific Charter rights, but ignore or minimize the textual or jurisprudential restrictions on the application of those rights” (with the consequence that, “legislative and government action may be limited for reasons that would not otherwise amount to the violation of a
18
In summary, Charter values justification may reflect an ambitious conception of administrative
law justification, because it subjects the exercise of public authority to the values articulated in
the Charter; or it may reflect an impoverished conception of Charter justification, because it
reduces Charter rights to mere values to be taken into account in the exercise of public authority.
In either case, the Court has not clarified this, and the new approach does not in itself resolve
these questions.
1.1.3 The Form of Review
The form of review refers to the form or method of analysis, or legal test, that the court uses to
apply the criterion of review: to identify the interests and issues in a case, and to reason through
the tensions that arise among them in light of the conceptual reasons for why an administrative
decision should ultimately stand or fall. I distinguish among three forms of review. First, free-
form or ad-hoc balancing, using the example of the reasonableness test traditionally used in
administrative law. Second, the proportionality test, traditionally used to apply section 1 of the
Charter. Third, the mixing of these forms of review in the Doré test, in what amounts to a
complicated form of the reasonableness test or a simplified form of the proportionality test.
1.1.3.1 The Reasonableness Test
The reasonableness test is a formless or ad-hoc method of analysis: the reviewing court
scrutinizes the reasons of the decision-maker with attention to the factual and legal issues raised
by the criterion of review, based on whichever of these seem especially relevant in the case.
There is no established set of issues that is considered in every case. In theory, the benefits of
this approach include its simplicity and sensitivity to context (insofar as the court chooses what
Charter right”) (ibid at 376-377). The problem with the third reading is its “nearly limitless capacity to create enforceable Charter-based requirements, with little regard to the language of the Charter” (ibid at 380).
In this paper, I focus on the first reading of Charter values (treating Charter values as coextensive with rights), although on my reading of Doré the Court may be suggesting the scope of Charter values is wider than this (see Part 2.3.2, below). In any event, I share Horner’s concern that, “because the substantive scope of Charter values is ill defined, they provide little to no guidance for decision-makers, and potentially provide — for no principled reason — a greater limit on the scope of legislation and government decision-making than would be expected under a traditional Charter rights analysis” (ibid at 362). Conversely, for the reasons set out in this paper, their application may involve a greater constraint on individual interests than would be expected under a traditional Charter rights analysis.
19
to focus on); the weaknesses include its inconsistency and weak guidance to others (claimants,
decision-makers, courts, policy-makers, and the public) for reference in future cases.
1.1.3.2 The Proportionality Test
The proportionality test is what the Court has adopted to apply section 1 of the Charter (again,
providing 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”).57 Early on, the Court observed that section 1 suggests that, (a) the state must have an
objective of “sufficient importance” to justify limiting a right; (b) “the means chosen” should be
“reasonable”; and (c) reasonableness is “a form of proportionality test.”58 In R. v. Oakes,59 and
its subsequent jurisprudence, the Court has elaborated on this. If the state has a pressing and
substantial objective, then the limitation on rights will be justified if the means chosen are
rationally connected to the objective, minimally impairing of the claimant’s rights, and
proportional in effect.60
We can apply this test in the context of judicial review by first considering whether a claimant’s
rights are infringed by a decision, and then by considering the importance of the decision-
maker’s statutory objectives and whether the decision is rationally connected to those objectives,
minimally impairing of the claimant’s rights, and proportional in its effects. Indeed, in the
context of judicial review, the proportionality test serves two important functions: a coherence
and a signaling function. First, the proportionality test provides a transparent framework for
identifying the distinctive interests that are at stake in public law adjudication, how they relate to
each other, and how the tensions among them might be resolved in a coherent way (the
57 When the Court first formulated the proportionality test, it did not credit a prior opinion. It has been suggested that the Court may have adopted the test through the influence of the chief justice’s law clerk, who had recently studied European human rights law; or from the European Court of Human Rights; or from a decision of the United States Supreme Court (considering restrictions on commercial speech under the First Amendment to the U.S. Constitution). See Jackson, supra note 2 at 3094, n 73.
58 See Big M Drug Mart, supra note 38 at para. 139. The Court also suggests that it “may wish to ask whether the means adopted to achieve the end sought do so by impairing as little as possible the right or freedom in question.”
59 Supra note 4.
60 Ibid at paras. 69-71.
20
coherence function). Second, beginning with the decision-maker’s objectives and then
considering the decision (attending to the rational basis for the decision; the alternatives to the
decision, if any; and the effects of the decision), draws attention to the source of constraints on
the claimant’s rights, and whether a reasonable decision discloses an unreasonable statute or
public policy that demands to be tested in its own right (the signaling function).
Because the Court did not credit a prior opinion when it adopted the proportionality test, it is
sometimes treated as a legal transplant into Canada, or as a test that has been developed for a
specific context.61 The reality is both simpler and more complicated. The modern formulation of
the test is sometimes traced to Prussian administrative law (undermining the suggestion that it
was developed in order to test laws rather than administrative activity), but the underlying idea
and the form of reasoning have deeper roots.62 Indeed, the proportionality test is simply a form of
legal reasoning for reconciling competing rightful interests, neither of which is wholly
extinguished as a result of the decision, each of which is preserved.63 We can trace this form of
reasoning back to the classical Roman jurists, and forward into modern legal concepts such as
the doctrine of necessity.64 The same basic form of reasoning is used in diverse legal contexts
today, worldwide.65
61 See note 57, supra (noting that when the Court first formulated the proportionality test, it did not credit a prior opinion). Compare Doré, supra at para. 34 (suggesting that the Oakes test was “developed for reviewing laws for compliance with the Constitution”). Compare Alec Stone Sweet & Jud Mathews, “Proportionality Balancing and Global Constitutionalism” (2008) 47 Colum. J. Transnat’l L. 68-149 (describing the worldwide spread of the proportionality test as a sociological phenomenon).
62 See e.g. Moshe Cohen-Eliya & Iddo Porat, Proportionality and Constitutional Culture (Cambridge: Cambridge University Press, 2013); Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge: Cambridge University Press, 2012). For a discussion of examples of proportionality reasoning being use in early common law cases, see also Jackson, supra note 2.
63 See Ernest J. Weinrib, “Private Law and Public Right” (2011) 61:2 UTLJ 191, esp. at 206-210.
64 Ibid.
65 Sweet & Mathews, supra note 61. A fuller discussion of the alternative formulations of the proportionality test lies outside the scope of this paper, but it may be noted that differences in how the test is formulated can have significant implications for public law adjudication. For example, in the Canadian version of the test, the threshold question is whether the state’s objectives are sufficiently important to limit the claimant’s constitutional rights, but we can distinguish between two broad approaches to this question. On what I call a formal approach, a wide range of state objectives will satisfy the test (e.g., pressing and substantial objectives). As a result, however, the competing interests may be incommensurable (e.g., the state’s administrative preferences versus the claimant’s constitutional rights). On a substantive approach, the state’s objectives should be consistent with the rights that are guaranteed by
21
1.1.3.3 The New Approach: The Doré Test
The Doré test amounts to a complicated version of the reasonableness test or a simplified version
of the proportionality test. In either case, it reflects an uneasy fusion of two concepts: balancing
and minimal impairment plus proportionality.
In Doré, the Court says that administrative decision-makers should balance the “Charter values”
at play in a case with their statutory objectives, by considering “how the Charter value at issue
will best be protected in view of the statutory objectives.”66 The Court explains that, this
“requires the decision-maker to balance the severity of the interference of the Charter protection
with the statutory objectives.”67 In turn, on judicial review, “the question becomes whether …
the decision reflects a proportionate balancing of the Charter protections at play.”68 In Loyola,
the Court incorporates Charter rights into the test (saying that the decision-maker should
the constitution. The state may impose limitations on rights when it is taking steps to further rights, or to secure the conditions in which others (or everyone) can exercise their rights (for example, imposing limitations on hate speech, if this secures the dignity of targeted groups and removes impediments to political participation).
The substantive approach is stringent, but also consistent with a interpretation of the constitution according to which rights and limitations on rights reflect the same underlying values, and the state’s obligation to secure a condition of equal and reciprocal freedom. In its earliest cases applying the Charter, the SCC appeared to adopt something like the substantive approach to the proportionality test. Over time, however, the Court has come to favour the formal approach. Indeed, the Court’s treatment of state objectives in the ordinary application of the proportionality test may help us to understand how it conceptualizes constitutional values in general, as basically subject to the legislature’s judgment of what are pressing and substantial legislative objectives.
For judicial expressions of the substantive approach to the proportionality test, see e.g. R. v. Big M Drug Mart Ltd, supra note 38 at paras. 80-81 (“The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the legislature and ensures they are consonant with the guarantees enshrined in the Charter”) and R. v. Oakes, supra note 4 at paras 69-71. For an example of this approach being applied, see e.g. R. v. Keegstra, [1990] 3 SCR 697; see further Lorraine E. Weinrib, “Canada’s Charter: Rights Protection in the Cultural Mosaic” (1996) 4 Cardozo J Intl & Comp L 395 at 403-410. For an acknowledgment of the change in the SCC’s approach, see Patrick J. Monahan, Bryon Shaw & Padraic Ryan, Constitutional Law (Toronto: Irwin Law, 2017) at 434-445. Finally, for discussion of the idea that rights and limitations have the same source in the constitutional order, see e.g., Aharon Barak, “Proportional Effect: The Israeli Experience” (2007) 57 UTLJ 369 at 382 (“[H]uman rights and the limitations on them derive from the same source. They reflect the same values”), and for a discussion of the role of constitutional rights and limitations on rights in securing a condition of equal and reciprocal freedom, see Jacob Weinrib, Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law (Cambridge: Cambridge University Press, 2016) ch 7.
66 Doré, supra at paras. 55-56.
67 Ibid.
68 Ibid at paras. 57-58.
22
“proportionately balance the Charter protections —values and rights — at stake in their
decisions with the relevant statutory mandate”),69 but the basic framework remains the same.
I will say more about the ambiguities of this test below, but as a preliminary matter I will focus
on the tensions that may arise between characterizing the test as a matter of “balancing” as well
as of minimal impairment plus proportionality. The references to “balancing” seem to suggest
that we invariably need to strike a balance between the claimant’s rights and the government’s
objectives, through a process of mutual adjustment. The problem is that we cannot assume that
every decision will involve a range of viable alternatives, so we may be looking at a procrustean
bed. If striking a balance requires decision-makers to constrain the scope of a claimant’s rights in
deference to the government’s objectives, without testing whether those objectives are important
enough to justify this result, then the constraints imposed on the claimant’s rights may not be
justifiable. Conversely, if striking a balance requires the decision-maker to adjust the state’s
objectives to accommodate the claimant’s rights, without testing whether the state’s objectives
are actually important enough to justify limiting these rights, then the state’s objectives will be
undermined, without needing to be. In these situations, the balancing test will have the effect of
either unjustifiably constraining the claimant’s rights, or unnecessarily undermining the statutory
framework (or as I phrase this later on, bending the statutory framework out of shape).
By contrast, the references to minimal impairment and proportionality seem to suggest that we
take the government’s objectives as fixed. If the government can adjust the means it takes to
pursue its objectives, to accommodate the claimant’s rights, then the claimant will be
accommodated; otherwise, not. But if we have to accept these constraints without testing the
government’s objectives, the constraints may not be justified.
Put simply, the only way to resolve these tensions is to assess the nature of the competing
claims/objectives at the outset, and then to proceed through the application of the adjudicative
test with attention to the possibility that the statutory framework is the source of the
constitutional constraints. If the claimant’s right and the state’s objectives are in conflict, or if
there are no less impairing means of pursuing the state’s objectives, or if the impact of the
69 Loyola, supra at paras. 4, 35ff.
23
decision seems disproportionate, then we need to consider whether the source of the
constitutional constraint lies in the state’s objectives and the statutory framework. We need a
form of analysis that brings these tensions into focus. The proportionality test does this
(including by starting with the question of objectives), whereas the reasonableness test does not
(because it treats the state’s objectives as a given).
This kind of parsing of the Doré test may seem pointless, if we suppose the Court’s meaning is
sufficiently clear from the references to “balancing” (or “proportionate balancing”) and “minimal
impairment”. However, these tensions come alive in the cases, especially in Loyola. In that case,
I will suggest that the Court in fact bends the statutory framework out of shape by applying a
balancing approach, in a situation in which the Court could have demonstrated that the source of
the constitutional constraint was the statutory framework itself, by taking the state’s objectives
more seriously. In either case, the Court could have identified the interests at stake, and how they
might have been resolved in a more coherent way, by applying the proportionality test. In other
words, the Court could have made use of both the coherence and the signaling functions of the
proportionality test.
1.2 Putting the Pieces Together The standard, criterion, and form of review can line up in different ways. I have suggested that a
flexible approach to the standard of review for administrative decisions is appropriate, given the
terrific diversity of administrative decisions, but for the reasons already stated I will not defend
any single approach to the standard of review. I have also suggested that the Charter applies to
administrative decisions, so that the criterion of review should be Charter justification. In either
event, I will defend the proportionality test as the appropriate form of review, because of the
distinctive resources it has to offer in public law adjudication. In this sense, my defense of the
proportionality test is practical.
The Vexed Status of Values in Administrative Law In this Part, I critique the reasons the Court has given for the new approach, focusing on two
ideas and how they come into tension. A central premise of the new approach is that
administrative law has the tools needed to handle the kinds of issues raised by cases that
implicate the Charter. Accordingly, the first idea is that administrative law justification
24
implicates values such as fairness, dignity, and equality. The second idea is that Charter
justification also does this, but within a different normative framework; that the Charter specifies
the rights that we associate with these values and the terms on which they are guaranteed; and
that the proportionality test provides a framework for applying these specifications and
guarantees. I discuss how the Court works through these two ideas in Roncarelli v. Duplessis and
Baker v. Canada (articulating the values at stake in administrative law), Slaight Communications
(applying the Charter and the proportionality test to administrative decisions for the first time),
and Multani and Doré (denying that the Charter applies to adjudicated administrative decisions,
and proposing the new approach to the judicial review of these decisions based on administrative
law). I suggest that the Court’s reasons for adopting the new approach are mistaken.
2.1 The Role of Values in Administrative Law For present purposes, the foundational case for the idea that administrative law implicates values
is Roncarelli v. Duplessis.70 Frank Roncarelli owned a liquor licence in Montreal. Maurice
Duplessis was the premier and attorney-general of Québec. Roncarelli was also a member of the
Witnesses of Jehovah, whose proselytizing in the 1940s spurred a public backlash, including
arrests. Roncarelli posted bail for hundreds of his congregation in this period; thereafter, his
liquor licence was cancelled. He was able to prove that the premier had targeted him for
retribution. The case turned on the question of discretion,71 and whether the premier was shielded
from liability because he was acting as a public official in directing the commission to cancel
Roncarelli’s licence.72 In reasons that are still widely-cited, Rand J held that public law
discretion is constrained by a public duty (an “implied public statutory duty”73), defined by the
statutory purposes the discretion is intended to serve and the public officer’s obligation to pursue
those purposes in good faith.74 Justice Rand connects this public duty with the rule of law, “as a
70 Roncarelli v. Duplessis, [1959] S.C.R. 121.
71 E.g., the commission had a statutory authorization to “cancel any permit at its discretion”. Ibid at 138-139, Rand J.
72 Quebec civil procedure required a month’s notice to be given to public officials being sued for damages; Roncarelli had failed to give proper notice. See ibid at 144, Rand J.
73 Ibid at 141, Rand J.
74 Ibid at 140, Rand J.
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fundamental postulate of our constitutional structure.”75 It followed that the premier’s act was an
unlawful intrusion upon the commission’s function.76
Forty years later, in Baker v. Canada (Minister of Citizenship and Immigration),77 an
immigration matter, the Court echoes these principles in terms that the Court will subsequently
adopt (or reframe) to suggest that administrative decision-makers are subject to Charter values
but not the Charter.78 The plaintiff, Mavis Baker, was a citizen of Jamaica who came to Canada
as a visitor and stayed. When she was ordered to be deported, she had four Canadian-born
children and had developed a psychiatric illness. To apply for permanent residence, she would be
required to leave the country. She applied for an exemption from this requirement on
“humanitarian and compassionate” grounds.79 Her application was refused, but it was
demonstrated that the immigration officer’s notes were derogatory.80 In reviewing the Minister’s
exercise of discretion, the Court held that the notes demonstrated a failure to give appropriate
weight to the humanitarian and compassionate grounds that were raised in the application.81
75 Ibid at 142, Rand J. Contra the dissenting reasons of Taschereau J (holding that, regardless of what the premier told the commission to do, he was acting as the province’s attorney general and premier: ibid at 126-130) and Fauteux J (holding that that the notice requirement had nothing to do with the good or bad faith of the public officer who was being sued: ibid at 171-181).
76 Ibid at 141-142, Rand J.
77 Supra note 34.
78 See Part 2.3.2, below.
79 See Immigration Act, R.S.C., 1985, c. I-2, s. 114(2) (providing that the Minister may facilitate a person’s admission to Canada, or exempt them from a regulation, on “humanitarian and compassionate” grounds).
80 Baker, supra note 34 at para. 5 (“The [applicant] is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C [humanitarian and compassionate] factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity. However, because of the circumstances involved, there is a potential for adverse publicity. I recommend refusal but you may wish to clear this with someone at Region.”).
81 Ibid at paras. 63-75, 76. Separately, as a matter of procedural fairness, the officer’s notes established a reasonable apprehension of bias against Baker. See ibid at paras. 45-48, 76.
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For present purposes, Baker is significant for the ambiguous way in which it talks about the
values implicated in the decision.82 As we have seen, in Roncarelli v. Duplessis, the Court held
that public officials should exercise their discretion in a manner that is consistent with the
purposes of the law. In a sense, the Court says nothing new about this in Baker. The Court holds
that, “[d]etermining whether the approach taken by the immigration officer was within the
boundaries set out by the words of the statute and the values of administrative law requires a
contextual approach, as is taken to statutory interpretation generally”,83 and that, “[t]he reasons
of the immigration officer show that his decision was inconsistent with the values underlying the
grant of discretion.”84 The references to “values” here are ambiguous, but we might decide that
the Court is simply referring to a purposive reading of the statutory framework. As the Court
says later on, Baker’s application should have been “evaluated in a manner that is respectful of
humanitarian and compassionate considerations”, i.e., in a way that gives effect to the purpose of
the exemption.85
A similar ambiguity, that could be resolved in a similar way, arises in connection with the
Court’s references to the Charter. The Court decides the case on administrative law grounds,86
but nonetheless describes the Charter as one of the constraints on administrative discretion.
These passages may be read as wholly in keeping with the Court’s prior jurisprudence, or going
beyond it. Again, in Roncarelli v. Duplessis, the Court held that public officials should exercise
their discretion in a manner that is consistent with the purposes of the law and in good faith. In
Slaight Communications, discussed below, the Court also holds that administrative decisions are
subject to the Charter (because the Charter is the supreme law of Canada). In Baker, the Court
82 The majority set aside the Charter arguments that were raised and decided the case on administrative law grounds. See ibid at para. 11; compare ibid at paras. 78-81, Iacobucci J, dissenting.
83 Ibid at para. 67.
84 Ibid at para. 65.
85 As the Court explains, “the discretion granted is confined within certain boundaries”, such that “the decision must be made following an approach that respects humanitarian and compassionate values”. It follows that, “decisions cannot stand when the manner in which the decision was made and the approach taken are in conflict with humanitarian and compassionate values.” The decision was unreasonable because of its derogatory treatment of the very factors (i.e., Baker’s illness and the impact of deportation on her children) that were supposed to be considered respectfully. See ibid at paras. 66 and 74.
86 See ibid at para. 11; compare at paras. 78-81, Iacobucci J, dissenting.
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affirms both of these propositions. In the first relevant passage, the Court says that administrative
discretion should be exercised “in a manner that is within a reasonable interpretation of the
margin of manoeuvre contemplated by the legislature, in accordance with the principles of the
rule of law [citing Roncarelli v. Duplessis], in line with general principles of administrative law
governing the exercise of discretion, and consistent with the [Charter] [citing Slaight
Communications].”87
There is no great ambiguity here. However, three paragraphs later, the Court reiterates these
points, but without the citations, and using broader language. In the second relevant passage, the
Court says that administrative discretion should 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”.88 In this passage, the
Court adds “the fundamental values of Canadian society” as a criterion of judicial review, and
alters the reference to the Charter, to invoke “the principles of the Charter”. There are also many
other references to “values” in Baker.89 Is the Court ultimately saying anything new about
administrative law and the Charter? As we will see, in Doré, these references to values will
provide a basis for the Court to reconceptualize the judicial review of administrative decisions by
reference to “Charter values” rather than the Charter’s specific guarantees and limitations.
87 Ibid at para. 53.
88 Ibid at para. 56 (emphasis added). 89 Most notably, in addition to the humanitarian and compassionate values that were considered, the Court placed emphasis on the concomitant values of international law. This aspect of the case is controversial, because Canada had ratified (but not implemented) the international Convention on the Rights of the Child, Can. T.S. 1992 No. 3. The Court acknowledges that the convention has no direct application in Canadian law, but nonetheless suggests that “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review”. The Court notes that the Charter is also interpreted in this way. In the result, the Court holds that the decision in this case should have taken into account both Baker’s interests as well as those of her children. In dissent, Iacobucci J objects to this approach, on the grounds that the convention was not implemented in Canada (although he suggests that he might have decided otherwise if the Charter had been applied). See ibid at paras. 69-70, 73, citing Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994) at 330. Compare ibid at paras. 78-81, Iacobucci J, dissenting.
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2.2 The Role of Charter Rights in Administrative Law In parallel with these developments in the case law, the Court had its first occasion to consider
the application of the Charter to administrative decisions in Slaight Communications,90 an
employment matter. The Court affirms that the Charter applies in this context because it is the
supreme law of Canada, although administrative law concepts may also be considered, and a
conflict emerges about the kinds of values that are appropriate to each form of review.
The appellant operated a radio station. The respondent, Ron Davidson, was an employee. An
arbitrator appointed under the federal labour code determined that Davidson was unjustly
dismissed (indeed, that he was “the subject of some kind of personal vendetta”)91 and made two
orders as a consequence. The first required the employer to provide a letter of recommendation
(stating basic facts about Davison’s performance) (the “positive order”); the second required the
employer to respond to requests for information about Davidson by sending the letter of
recommendation, without additional comments (the “negative order”).92 The employer
challenged both of these orders on the basis that they infringed its freedom of expression under
section 2(b) of the Charter, and could not be justified under section 1.
All of the justices agreed with the reasons of Lamer J (concurring in part) affirming that the
Charter applies to administrative decision-making.93 He carefully explains that the Charter
applies to the arbitrator’s decision, because the arbitrator is a creature of statute: she derives all
of her power from the law, and the constitution is the supreme law of Canada.94 Indeed, the
Charter applies equally to the law that authorizes the decision-maker, and the decision that is
authorized by the law.95 Accordingly, Lamer J proposes the following test for applying the
90 Supra note 5.
91 Ibid at 1053.
92 Ibid at 1046-1047.
93 See ibid at 1048, Dickson CJC; 1068, Beetz J, concurring in part.
94 Ibid at 1077-1079.
95 Ibid at 1077-1079; 1080-1081. In other words, a statute cannot infringe the Charter without justification, and neither can a statutory decision-maker.
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Charter in this context: if the law authorizes a decision-maker to infringe the Charter (expressly
or by necessary implication), then the law should be scrutinized under section 1; if the law is
ambiguous, then the decision should be scrutinized under section 1.96 In either case, the Court
can use the proportionality test, using the purpose of the law as a point of reference for the
purposes of the decision.97
The disagreement in this case turns on what kinds of value questions may also be considered as a
matter of administrative law. On the merits, the majority held that both of the orders were within
the decision-maker’s jurisdiction, and both of them were justifiable under the Charter. By
contrast, Lamer J held that the second order was “patently unreasonable” as a matter of
administrative law (because it resulted in “circumstances in which the letter of recommendation
could be seen as the expression of the [employer’s] opinions”; he called this “totalitarian”) and
he did not consider whether it could be justified under the Charter.98
Reflecting on the incongruity of these approaches, the Chief Justice indicates that the
administrative law approach should deal with questions of “fact”, such as relying on irrelevant
considerations, and the constitutional law approach should deal with questions of “value”.99 By
“value” we might suppose that he means questions of public policy and Charter rights. But this
may be too simple.100 Chief Justice Dickson does not actually deny that administrative law
96 Ibid at 1079-1080.
97 Ibid at 1081.
98 Ibid at 1075.
99 Ibid at 1049 (“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. A few comments nonetheless may be in order. A minimal proposition would seem to be that administrative law unreasonableness, as a preliminary standard of review, should not impose a more onerous standard upon government than would Charter review. While patent unreasonableness is important to maintain for questions untouched by the Charter, such as review of determinations of fact ... in the realm of value inquiry the courts should have recourse to this standard only in the clearest of cases in which a decision could not be justified under s. 1 of the Charter. In contrast to s. 1, patent unreasonableness rests to a large extent on unarticulated and undeveloped values and lacks the same degree of structure and sophistication of analysis. It seems to me that had Lamer J. gone on to conduct a s. 1 inquiry, his excellent analysis of the contending values in the context of the positive order would have been equally applicable to the negative order which he has instead found to be patently unreasonable” [citation omitted]).
100 Ibid. In stating this distinction, Dickson CJ cites a passage from Lamer J’s reasons in the labour matter of Blanchard v. Control Data Canada Ltd., [1984] 2 SCR 476 at 494-495. This is confusing, because in the passage
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implicates values; his concern is that they are “to a large extent … unarticulated and
undeveloped values” (he may have in mind considerations such as fairness). In any event, he
says that the administrative law form of review, in this case patent unreasonableness, “lacks the
same degree of structure and sophistication” as the proportionality test.101 In other words, he is
saying that when the Charter applies, the proportionality test is the more appropriate form of
review for handling the values that are implicated by the Charter.
Despite these ambiguities, I will suggest that the case stands for three plain ideas. First, the
Charter is the appropriate criterion of review for administrative decisions that implicate the
Charter, because the Charter is the supreme law of Canada. Second, the proportionality test is
the appropriate form of review for these cases, because of its nuance and sophistication. Third,
an infringement of the Charter may be the result of a flawed decision or a flawed statutory
framework, and the Court should be attentive to both of these possibilities.
The concurring justices in Multani and the Court in Doré will distinguish Slaight
Communications when they propose a new approach to the judicial review of adjudicated
administrative decisions, but they never provide an answer to these three basic reasons for
applying the Charter and the proportionality test in this context.
2.3 The New Approach: “Charter Values” in Administrative Law In Multani, a case involving a high school student who wanted to wear a kirpan to school, the
majority affirms the approach taken to the judicial review of administrative decisions in Slaight
Communications.102 By contrast, Deschamps and Abella JJ, concurring, take a radically different
cited, Lamer J says that the fact/law distinction is not meaningful in this context (an “unreasonable finding is no less fatal to jurisdiction because the finding is one of fact rather than law … an unreasonable finding, whatever its origin, affects the jurisdiction of the tribunal”).
101 Slaight Communications, supra at 1049.
102 Multani, supra note 8. The case involved a high school code of conduct that was applied to a student, Gurbaj Singh Multani, who wanted to wear a metal kirpan (a ceremonial dagger) to school, in accordance with his religious beliefs (ibid at 280-281). The decision involved several layers of bureaucracy: the school board and Multani agreed that he should be able to wear the kirpan as long as it was sealed inside his clothing; the governing board refused to approve this agreement, saying that it violated the school’s code of conduct (which prohibited the carrying of
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approach. They deny that the Charter actually applies to adjudicated administrative decisions
(and they deny that Slaight Communications settled this question).103 For the judicial review of
these types of decisions, they apply a relaxed standard of review (reasonableness). They also
propose a new criterion of review (invoking constitutional “values” as opposed to Charter rights)
and a new form of review (mixing elements of the reasonableness and proportionality tests). Six
years later, in Doré, the Court will develop these ideas into the Doré “framework” for the
judicial review of adjudicated administrative decisions (and in Loyola, the Court will apply this
framework to discretionary administrative decisions generally). In the balance of this Part, I will
critique the reasons given for denying that the Charter applies in this context, the formulation of
the new approach, and the ambiguities that arise from its application.
It should be emphasized that in both of these decisions (Multani and Doré), the focus of the new
approach is “adjudicated” administrative decisions, i.e., decisions and orders resulting from the
quasi-judicial proceedings of administrative bodies.104 Nonetheless, the discussion of what
constitutes an adjudicated decision in these cases is very loose,105 and the distinction is
weapons and dangerous objects); finally, the school board’s council of commissioners upheld the governing board’s decision, while suggesting an alternative solution: instead of a metal kirpan, Multani could wear a harmless or symbolic one (e.g., a wooden kirpan or a pendant). The appellants challenged this decision under s. 2(a) of the Charter, and asked for the original agreement with the school board to be put into effect (ibid at 265-267). The majority applies a correctness standard of review, Charter justification as the criterion of review, and the proportionality test as the form of review. Applying the proportionality test, the majority accepts that the decision was motivated by a pressing and substantial objective (safety concerns) but qualifies this: the objective has to be understood as reasonable safety, not absolute safety (which is impractical to achieve) (ibid at 283-284). In light of this objective, the majority carefully assesses the evidence of the risk that was supposed to follow from the student wearing a kirpan (as he agreed to do, inside his clothing) (ibid at 287-294). The majority decides that the risk of violence was overstated. It follows that, while the council of commissioners’ decision was rationally connected to the safety objective, it was not minimally impairing of the student’s rights (ibid at 288). Justice LeBel, concurring, suggests that a simplified form of the proportionality test may be used in this context, focusing on the minimal impairment test (ibid at 324-325).
103 Ibid at para. 102ff.
104 See e.g. ibid at paras. 112 (referring to administrative decisions and orders and the process undertaken in reaching them) and 136 (concluding the reasons by reference to the “exercise of adjudicative authority”). See also, Doré, supra at para. 3ff (maintaining that the new approach applies to “adjudicated administrative decisions”).
105 See e.g. Multani, supra at para. 112 (suggesting that, “[a] decision or order made by such a body is not a law or regulation, but is instead the result of a process provided for by statute and by the principles of administrative law in a given case”). The justices do not consider what makes the decision in this case adjudicative (see e.g. ibid at para. 96, noting that the school board council of commissioners is empowered to reconsider a decision of the school’s
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subsequently dropped, in Loyola.106 I will suggest that the distinction makes no difference in
assessing whether the reasons for adopting the new approach are compelling.
It should also be noted that the references to Charter rights, guarantees, and protections in these
cases appears to soften somewhat the suggestion that the Charter does not apply in this context.
Regardless, the reasons for adopting the new approach remain significant. The entire conception
of deference in these cases is predicated on a misapprehension of whether the Charter actually
applies to administrative decisions involving the exercise of discretion.
2.3.1 Multani v. Commission scolaire Marguerite‑Bourgeoys
2.3.1.1 Reasons for Denying that the Charter applies
The concurring justices cite a mix of reasons for denying that the Charter applies to adjudicated
administrative decisions. I will group these into two categories, conceptual and practical, and
focus on the central argument: that the Charter does not apply because of the language of section
1 (specifically, the “prescribed by law” criterion), the nature of Charter justification (which they
associate with broad societal interests, in contrast to the supposed narrow interests involved in
administrative law cases), and the institutional role of administrative bodies (which they liken to
courts for these purposes).
2.3.1.1.1 Conceptual Arguments
The first conceptual argument involves section 1 of the Charter. Again, 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”.107
The concurring justices argue that adjudicated administrative decisions are not properly
governing board, but without considering what procedures they use). The administrative decision in Doré is more obviously adjudicative, in that it resulted from quasi-judicial proceedings in a professional disciplinary setting.
106 See Loyola, supra at para. 35 (holding that the Doré framework “applies to discretionary administrative decisions that engage the Charter”).
107 Charter, supra s. 1.
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characterized as “law” or “prescribed by law” for the purposes of section 1.108 They carefully
define the word “law” as a “norm or rule of general application”; consider how the word is
interpreted in diverse authorities; consider the processes by which laws and regulations and
administrative decisions come about; and contrast what they say is the generalized character of
law-making and the context-specific character of administrative decisions.109
None of this provides a coherent basis for denying that the Charter applies to administrative
decisions. Section 32 of the Charter provides that it applies “to the Parliament and government
of Canada in respect of all matters within the authority of Parliament”, and similarly to the
legislature and government of each province. It follows that the Charter applies to administrative
decisions because the activity of administrative decision-makers falls “within the authority” of
these bodies. By contrast, section 1 of the Charter does not establish what the Charter applies to;
instead, it establishes the criteria for determining whether activity that the Charter applies to, and
that imposes limitations on Charter rights, is nonetheless justified under the Charter. Put simply,
if administrative decisions are lawful, then they are subject to the Charter.110
108 Multani, supra at paras. 111-112 (calling this the problem of “equating ... a decision with a law within the meaning of s. 1”).
109 Ibid at para. 112ff. For example, at para. 112, they stress that laws and regulations are “enacted or made by the legislature or by a body to which powers are delegated” and establish a norm of general application (i.e., they are “not limited to a specific case”). By contrast, “[a]n administrative body determines an individual’s rights in relation to a particular issue”; that determination (in the form of a decision or an order) is not a law or a regulation, but is instead “the result of a process provided for by statute and by the principles of administrative law in a given case”.
110 The justices’ reasons were originally written in French, and it has been suggested that the discussion of the prescribed by law criterion makes sense of the French text of section 1 of the Charter. See Robert Leckey, “Prescribed by Law/Une Règle de Droit” (2007) 45:3 Osgoode Hall Law Journal 571 at 574-576 (Leckey does not propose a resolution of the apparent tension between the French and English texts). The French text of section 1 provides that the Charter “garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique.” Thus, in the French text, the adjectival phrase “prescribed by law” is rendered as a single noun, “une règle de droit”. This helps to explain the concurring justices’ focus on the word, “law”/“une règle de droit” (see Multani, supra at paras. 113, 115). Nonetheless, the interpretation of the word demands attention to its context and how it is being used. In the French text, the concept that rights may be limited by “reasonable limits prescribed by law” is rendered as the concept that rights may be “restreints que par une règle de droit, dans des limites qui soient raisonnables”. A large and liberal interpretation of these texts suggests that both of them are describing lawful limitations on rights; lawful limitations on rights may include legislatively authorized administrative activity. To the extent that there is any ambiguity about this, closer attention to the English text of section 1 affirms this interpretation. According to the Oxford dictionaries, to “prescribe” means to “[s]tate authoritatively ... that (an action or procedure) should be carried out”. We can say that an administrative decision is “prescribed by law” when a statute or regulation says that the decision-maker should make a decision, in the sense that she is required to decide the issues that properly come before her, in service of the statute’s objectives. This is
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The justices’ second conceptual argument involves the nature of Charter justification. They
suggest that Charter justification is “based on the collective interest”, in the sense that applying
section 1 of the Charter requires attention to the wider public interests stake in a case.111 The
suggestion is that it does not make sense to apply the same criteria of justification to
administrative decisions, which are narrowly tailored to serve particular interests. The distinction
is untenable. Laws and regulations can have a narrower purpose than the “collective interest”,
and administrative decisions invariably serve public interests, defined by statute. Charter
justification does not exclude administrative decision-making because its focus is too narrow;
instead, it brings the public dimension of administrative decision-making into focus.
The justices’ third conceptual argument involves the institutional function of administrative
decision-makers. Despite invoking the concept of adjudication very loosely in this context,112 the
justices suggest that the Charter applies to administrative decision-makers in the same way that
it applies to the courts. The analogy involves how the courts apply the Charter in developing the
common law. The justices begin with the Court’s past statements that, in the context of
developing the common law, “[t]he courts are … bound by the Charter as they are bound by all
true regardless of how we characterize the decision, as an adjudicated decision or simply as an exercise of discretion. See Oxford English Dictionaries, online: <https://en.oxforddictionaries.com/definition/prescribe> (the passage I have quoted reads in full, that to prescribe means to “[s]tate authoritatively or as a rule that (an action or procedure) should be carried out”).
In either event, as set out in the text corresponding to this footnote, section 32 of the Charter determines what the Charter applies to, and section 1 of the Charter establishes the criteria for determining whether activity that is lawfully authorized may justifiably impose limitations on Charter rights. Accordingly, to suggest that administrative decisions fall outside of section 1 is to suggest that administrative decisions may not impose limitations on Charter rights. Accordingly, the consequences of this line argument are incoherent. Notably in this regard, the concurring justices in Multani do not engage with the Court’s reasons in Slaight Communications or the majority’s reasons in this case. Indeed, the majority in this case follows Slaight Communications on this point, emphasizing that, “[s]ince the legislature cannot pass a statute that infringes the [Charter], it cannot, through enabling legislation, do the same thing by delegating a power to act to an administrative decision maker” (ibid at para. 22, citing Slaight Communications, supra note 5 at 1077-1078). In any event, they are satisfied that a decision made under a statutory authority is “prescribed by law” (Multani, supra at para. 22, citing Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69 at para. 141). The majority also considers this question from the perspective of the claimant. They stress that, “it is of little importance to [the claimant] — who wants to exercise his freedom of religion — whether the absolute prohibition against wearing a kirpan in his school derives from the actual wording of a normative rule [i.e., a law of general application] or merely from the application of such a rule [i.e., the application of the code of conduct]” (Multani, supra at para. 21).
111 Multani, supra at para. 119.
112 See note 105, supra, and corresponding text.
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law”, and “[i]t is their duty to apply the law, but in doing so they act as neutral arbiters, not as
contending parties involved in a dispute.”113 The concurring justices suggest that, “[t]he same
reasoning applies in the context of administrative law.”114 They reason that, “[l]ike the courts,
administrative tribunals are bound by the [Charter], their enabling legislation and the statutes
they are specifically responsible for applying”; and that, “[l]ike the courts, they cannot be treated
as parties with an interest in a dispute.”115 They conclude that, “[a] tribunal’s decision should not
be subject to a justification process as if it were a party to a dispute.”116
This is a curious line of reasoning. Courts are in a unique position for the purposes of Charter
justification, because the Charter does not actually apply to the courts; as we have seen, the
Charter applies to Parliament and the provincial legislatures with regard to matters falling under
their authority.117 Nonetheless, the courts develop the common law in conformity with the
Charter, because the Charter is the supreme law of Canada, and common law is law. It bears
emphasis that the courts refer to Charter “values” in this context because the Charter is not
formally engaged.118 The same considerations do not apply to administrative decisions.
Administrative bodies are more or less “judicial” in how they function, and more or less
independent of the executive, but they are all creatures of statute. For every administrative
decision, there is an underlying statutory objective, against which the decision may be assessed
for its legality. In addition, while judicial review proceedings may involve opposing private
parties (in which case the beneficiary of the decision will typically defend the decision, by
reference to the reasons and the record before the decision-maker), the administrative decision-
makers may also appear as parties.119 Moreover, in matters raising constitutional questions, the
113 Multani, supra at para. 122, quoting RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at 600.
114 Multani, supra at para. 123.
115 Ibid.
116 Ibid.
117 See Charter, supra s. 32.
118 See Horner, supra note 56 at 363, 364-367.
119 See e.g. Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 2 S.C.R. 147 at paras. 41-62 [OEB] (addressing the question of tribunal standing) and paras. 63-72 (addressing the content of the
36
decision-makers are often joined or represented by the government under whose authority they
act, pursuant to the notice requirements provided for in provincial rules of court.120 This was true
in Multani, and it is also true of the other cases under discussion (Doré, SL, and Loyola).121
In summary, it does not make sense of section 1 of the Charter, the nature of Charter
justification, or the institutional function of administrative bodies to say that the Charter does not
apply to administrative decisions, adjudicative or otherwise.
2.3.1.1.2 Practical Arguments
The dissenting justices also raise practical concerns about the purported burdens of applying the
Charter in this context (for the parties, decision-makers, and courts). Because of their practical
orientation, these arguments cannot provide a basis for denying that the Charter applies in this
context, but they signal the practical concerns that the new approach should ostensibly address.
With regard to reviewing courts, the concurring justices suggest that applying the Charter in
judicial review “implies that it is necessary in every case to begin by assessing” whether the
submissions that tribunals may raise), esp. at para. 45 (noting that the Court has repeatedly “permitted tribunals to participate [in appeals] as full parties without comment” in the past) and para. 57 (clarifying that, “tribunal standing is a matter to be determined by the court conducting the first-instance review in accordance with the principled exercise of that court’s discretion. In exercising its discretion, the court is required to balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality”). In Multani, the concurring justices also raise the concern that, “[t]here are also problems related to the attribution of the burden of proof and to the nature of the evidence that an administrative body with quasi-judicial functions would have to adduce to justify its decision under s. 1 in light of the fact that it is supposed to be independent of the government” (ibid at para. 111). These concerns are also considered and addressed in OEB, supra at paras. 41-62.
120 See e.g. Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109 (providing, in relevant part, that, “[n]otice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario” in any proceedings in which “[a] remedy is claimed under subsection 24(1) of the [Charter] in relation to an act or omission of the Government of Canada or the Government of Ontario”).
121 In Multani, supra, the decision-maker and the province were respondents. In Doré, supra, the parties included both of the decision-makers (the disciplinary committee of the provincial law society as well as the Tribunal des professions, which reviewed the law society’s decision) and the province. In SL, supra, the respondents were the decision-maker (the school board) and the province. In Loyola, the respondent was the province alone, because the decision-maker was the province’s minister of education. Slaight Communications was different insofar as it involved arbitration; the employee who was successful in the arbitration defended the arbitrator’s decision. In any event, all of these cases were focused on the decision-maker’s reasons, and none of them involved the kind of theoretical problem that the dissenting justices invoke here.
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statutory framework is constitutional.122 On the contrary, judicial review always demands
attention to the statutory framework, but that does not mean that the constitutional validity of the
framework needs to be determined in every case.
With regard to decision-makers, the concurring justices suggest that applying the proportionality
test in judicial review implies that decision-makers also have to use this test.123 On the contrary,
depending on the context, decision-makers may be afforded considerable flexibility in how they
reach their decisions, despite the courts using the proportionality test to review them.124
Finally, with regard to the parties, the justices suggest that the new approach is preferable for
reasons of predictability and consistency.125 But a structured form of judicial review is a stronger
candidate for these purposes than an ad-hoc form of review.126
The broadest formulation of the argument against Charter justification is that it “is based on the
duty of the executive and legislative branches of government to account to the courts for any
rules they establish that infringe protected rights”, and that the proportionality test was
“developed to assess legislative policies”; whereas the “duty to account” is “not easily applied to
administrative tribunals”.127 I have suggested that Charter justification has a broader scope than
this, because it applies to legislatively authorized activity, such that the “duty to account” does
apply to administrative bodies (and in any event to the legislatures that authorize them). The duty
122 Multani, supra at para. 118.
123 Ibid at para. 120.
124 The justices also say that if decision-makers as well as reviewing courts apply the proportionality test, this will render the “decision-making process formalistic” and distract the reviewing court from the substance of administrative decisions (ibid). It is not entirely clear what this means. In any event, this does not address whether the proportionality test provides a more sophisticated framework for considering the values that come into play in Charter cases, on judicial review, as opposed to a free-form reasonableness test.
125 Ibid at para. 125.
126 The concurring justices also raise the concern of whether administrative decisions involving a mix of questions (i.e., administrative law questions as well as Charter challenges to administrative decisions) should be resolved using one or two methods of analysis (styled as a concern of “analytical consistency”) (ibid at paras. 111, 126-128). The justices suggest that it is easier for parties and decision-makers to use one method of analysis for both sets of issues, but their argument is undercut by their acknowledgement that the proportionality test is appropriate to use when evaluating Charter challenges to the decision-maker’s statutory framework (see ibid at paras. 3-6, 36, 43).
127 Ibid at para. 121.
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is discharged, in the typical case, by the decision-maker giving cogent reasons for decision in the
first place. For the reasons discussed in Part 1, above, the concurring justices’ characterization of
the proportionality test also mistakes its jurisprudential origins and its nature. It is not a test
developed for one use or another. It is a form of legal reasoning for balancing competing rightful
interests that is pervasive in the western legal tradition. In any event, none of these arguments
provide a compelling answer to the insights first expressed in Slaight Communications, including
that the Charter is the supreme law of Canada and that the proportionality test provides a more
nuanced and sophisticated method for addressing the values implicated in Charter cases.
2.3.1.2 The New Criterion and Form of Review
The concurring justices deny that the Charter applies to adjudicated administrative decisions.
Nonetheless, they adopt a Charter-oriented criterion of review, by requiring decision-makers to
give effect to the “values protected by the [Charter]” in reaching their decisions.128 In Multani,
these values seem to be the same as Charter rights, and when the concurring justices review the
decision in this case, they refer to rights and values interchangeably;129 indeed, they appear to
apply Charter rights using a free-form reasonableness test.130 On the measures of predictability
and consistency, the new approach fails.131
128 Ibid at paras. 107, 109; see also ibid at para. 99 (stipulating that, “[i]n making its determinations, the school board must take all fundamental values into consideration, including not only security, but also freedom of religion and the right to equality”; that “the school board did not sufficiently consider … the right to freedom of religion”; and that, “[b]y disregarding the right to freedom of religion … the school board made an unreasonable decision”).
129 See ibid at para. 109. By way of further example, the concurring justices suggest that, “[i]f an administrative body makes a decision or order that is said to conflict with fundamental values, the mechanisms of administrative law are readily available to meet the needs of individuals whose rights have been violated” (ibid at para. 128, emphasis added). In any event, in this case, the justices say that “the school board’s decision ... had an impact on freedom of religion, the right to equality and the right to physical inviolability” (ibid at para. 95).
130 The justices assess the reasonableness of the decision in this case in just three paragraphs (ibid at paras. 96-99). In the first two paragraphs, they focus on the facts of the case, and fault the Court of Appeal for misapprehending what they treat as dispositive facts. In the third paragraph, they characterize the freedom of religion and the right to equality as “fundamental values” that should have been considered by the school board’s council of commissioners; indeed, they begin by saying that the council did not “sufficiently consider” these values, and end by saying that the council “disregard[ed]” them. As a matter of substance, this seems to mischaracterize the decision (the council did consider Multani’s freedom of religion, as well as his specific request for accommodation, and based on their assessment of the safety risk, proposed an alternative form of accommodation; see note 102, supra). In any event, as a matter of practice, the test appears to turn on the concurring justices’ assessment of the facts.
131 See ibid. Having conducted their review of the decision, the concurring justices do not explain what form the reasonableness assessment should take in future cases, although (following what they have done in this case) we
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In Doré, the Court will have more to say about the new approach. They will also justify it by
saying that it is sharing the work of interpreting the fundamental values of Canadian law and
society with administrative decision-makers.132 One might object that denying that the Charter
applies in this context is not a tenable way to do this, and abandoning a structured form of review
is not an effective way to do this. In any event, the ambiguities of the new approach (the scope of
Charter values, when they are triggered, and what trade-offs will be permitted or required in
light of the values that are triggered) remain to be resolved.
2.3.2 Doré v. Barreau du Québec
In Doré, a professional disciplinary matter,133 Abella J now writes for the Court.134 She
maintains the same premises for adopting the new approach and she develops it.135 As with my
might suppose that it will involve assessing whether, (a) the fundamental values in the case have been acknowledged (apparently meaning Charter rights, although the process for determining this is ambiguous), and (b) a result that would interfere less with these values was considered (although what is sufficient consideration remains ambiguous).
132 See Doré, supra at paras. 28-30, 33-35.
133 The claimant, Gilles Doré, was a criminal defence lawyer. In connection with an appearance in the Superior Court of Quebec, a judge insulted him; in response, Doré wrote an intemperate private letter to the judge, insulting him in turn. Both were subsequently sanctioned; Doré was suspended (for three weeks) by the provincial law society, the Barreau du Québec (the “Barreau”) (ibid at paras. 9-15, 17). The Barreau filed its complaint against Doré pursuant to the Code of ethics of advocates, R.R.Q. 1981, c. B-1, r. 1, Art. 2.03 (the “Code”), prescribing “objectivity, moderation and dignity” in lawyers’ conduct. The disciplinary council of the Barreau decided that Doré’s letter was not private, because it was written in his capacity as a lawyer; it was insulting (as such, it “had little expressive value”); and the judge’s conduct could not be used to justify the letter (ibid at para. 16); see further, Bernard c. Doré, 2006 CanLII 53416 (QC CDBQ). In the SCC, Doré argued that the decision to reprimand him infringed his freedom of expression.
134 Seven justices participate in the case (McLachlin C.J. and Abella, Binnie, Cromwell, Fish, LeBel, and Rothstein JJ). Justice Deschamps does not participate. She retires from the Court later that year.
135 Between Multani and Doré, a unanimous Court decides Lake v. Canada, supra note 26 (hereinafter, Lake), an extradition matter. After Doré is decided, Lake will be characterized as a swing away from Multani, toward an administrative law approach, and Doré will be characterized as integrating these two approaches -- the constitutional law approach from Multani and the administrative law approach from Lake (Loyola, supra at para. 3; see also, Lake v. Canada, supra at para. 26). This is misleading. If we apply the distinctions between the standard, criterion, and form of review, Lake begins to look like a good example of the Court holding the line on Charter justification, albeit in a manner that is tailored to context. The case involved an extradition decision by the federal Minister of Justice. The standard of review is reasonableness, but the criterion of review is Charter justification, because the case involves the justification of limitations on section 6(1) mobility rights (under section 1 of the Charter) and the justification of limitations on section 7 liberty rights (under section 7 of the Charter). The form of review is reasonableness (i.e., a free-form assessment of the reasons for decision), but this is in keeping with the specific tests
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discussion of Multani, I will focus on the reasons given for denying that the Charter applies in
this context and the ambiguities that result from the new criterion and form of review. I will
focus on the Court’s use of precedents, conceptual arguments, and academic authority.
2.3.2.1 Reasons for Denying that the Charter Applies
2.3.2.1.1 Arguments from Precedent
In Doré, the Court’s central argument for the new approach is based on precedent and simply
put: “[i]t goes without saying that administrative decision-makers must act consistently with the
values underlying the grant of discretion, including Charter values”.136 As we will see, this is a
subtle reframing of Roncarelli v. Duplessis, Slaight Communications, and Baker.
The Court distinguishes Slaight Communications in the same way as the concurring justices in
Multani, suggesting that it was decided in a context in which the options for constraining the
for Charter justification that the Court has developed in this context (i.e., pursuant to the Extradition Act, S.C. 1999, c. 18). Put simply, the Court applies the Charter in this case. To be precise, extradition involves a committal decision by a judge, and a surrender decision by the federal Minister of Justice. The Minister’s decision is “largely political”, because it involves international relations, and fact-specific; accordingly, it is entitled to deference (ibid at paras. 22, 27, 31, 34ff). The Minister’s decision is also subject to Charter justification (Ibid at paras. 22-24, 27ff.). The leading case on this question is United States of America v. Cotroni, [1989] 1 S.C.R. 1469 (“Cotroni”). In Lake, the Court affirmed its holding in Cotroni, 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” (Lake, supra at para. 28). In Cotroni, the Court determined this in a general way by applying the Oakes test (ibid); the Court was also satisfied that the doctrine of prosecutorial discretion is consistent with the Charter (ibid at para. 29). For guidance in future cases (and to avoid protracted legal wrangling over the constitutionality of extradition in every case), the Court set out a list of factors that prosecutors will typically consider in this context (the so-called Cotroni factors), and held that “the exercise of prosecutorial discretion will be interfered with in only the clearest of cases, such as where there is evidence of bad faith or improper motives” (ibid at paras. 29-30). In addition, in Lake, the Court affirms that if the Minister is asked to consider whether extradition violates the subject’s rights under section 7 of the Charter, then the Minister should “balance the factors for and against extradition in the circumstances in order to determine whether extradition would tend to ‘shock the conscience’”, understanding that the ultimate question is “whether or not the extradition is in accordance with the principles of fundamental justice” (ibid at paras. 31-32). The Court expressly affirms that, “the Minister must, in reaching his decision, apply the correct legal test”, including to determine whether the extradition is justifiable under section 7 of the Charter (ibid at para. 41). In other words, these administrative decisions involve free-form balancing, but that is because of the unique context for decision; these decisions, and the judicial review of these decisions, are undertaken as a matter of Charter justification.
136 Doré, supra at para. 24.
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discretion of administrative decision-makers were perceived to be limited.137 The Court suggests
that the “backdrop” for the case was “altered” in Baker, because Baker decided that
administrative decision-makers are “required to take into account fundamental Canadian values,
including those in the Charter, when exercising their discretion”.138 In making this statement, the
Court is linking together two passages from Baker: first, the suggestion that a decision-maker’s
reasons should be consistent with “the values underlying the grant of discretion”139 (which, as we
have seen, is ambiguous but also consistent with Roncarelli v. Duplessis); and second, the
Court’s suggestion that administrative discretion “must be exercised in accordance with ... the
fundamental values of Canadian society, and the principles of the Charter”140 (which is also
ambiguous but consistent with Slaight Communications).141
In other words, the Court links together the ambiguous references to “values” in Baker into a
novel argument: administrative law can incorporate “Charter values” without administrative
decision-makers becoming subject to the Charter. But for the reasons already considered, the
ambiguous references in Baker could be resolved differently, as acknowledgments that (a)
administrative law justification is animated by the purposive interpretation of statutes, and (b) the
exercise of public authority is subject to the Charter.142 Regardless, the plain language of the
Charter indicates that it applies to administrative decisions. As a consequence, these arguments
from precedent are not compelling.
In any event, the Court concludes that, in light of Baker, “we see a completely revised
relationship between the Charter, the courts, and administrative law”.143 The Court supports this
by reference to two subsequent developments: the simplification of the standards of review in
137 Ibid at paras. 25-27. Compare Multani, supra at paras. 102ff.
138 Doré, supra at para. 28, citing Baker, supra note 34 at paras. 53-56 and 65.
139 Baker, supra note 34 at para. 65, cited in Doré, supra at para. 28.
140 Baker, supra note 34 at para. 56, cited in Doré, supra at para. 28.
141 Notably, the Court does not discuss both versions of this passage from Baker, supra note 34.
142 See my discussion of these passages in Part 2.1, above.
143 Doré, supra at para. 30.
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Dunsmuir,144 and the expansion of the scope of remedial authority for administrative decision-
makers in R. v. Conway.145 The Court suggests that Dunsmuir established that, “judicial review
should be guided by a policy of deference”.146 In turn, the Court explains that R. v. Conway
established that, “administrative tribunals with the power to decide questions of law have the
authority to apply the Charter and grant Charter remedies that are linked to matters properly
before them.”147 The Court indicates that the new approach to judicial review “recognizes the
legitimacy that this Court has given to administrative decision-making in cases such as Dunsmuir
and Conway”, and that “[i]ntegrating Charter values into the [new] approach, and recognizing
the expertise of these decision-makers, opens ‘an institutional dialogue about the appropriate use
and control of discretion, rather than the older command-and-control relationship’” that
characterized judicial review in the past.148
The problem with this argument is that neither of these cases implies that the Charter does not
apply to administrative decisions, or that the courts should cede their place in the legal order for
the purposes of judicial review.149 They suggest the opposite.150 In any event, neither of them
puts into question the use of Charter justification or the proportionality test in this context.
144 Dunsmuir, supra note 23.
145 Conway, supra note 7.
146 Doré, supra at para. 30 (i.e., “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”), citing Dunsmuir, supra note 23 at para. 49.
147 Doré, supra at para. 30, citing Conway, supra note 7 at paras. 78-82.
148 Doré, supra at para. 35, citing Mary Liston, “Governments in Miniature: The Rule of Law in the Administrative State”, in Colleen M. Flood and Lorne Sossin, eds, Administrative Law in Context (Toronto: Emond Montgomery, 2008) 77 at 100.
149 See e.g. Dunsmuir, supra note 23 at paras 27-31 and 44-50, esp. at para. 48 (“What does deference mean in this context? ... It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations ... Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference ‘is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers’ … We agree with David Dyzenhaus where he states that the concept of ‘deference as respect’ requires of the courts ‘not submission but a respectful attention to the reasons offered or which could be offered in support of a decision’”, citations omitted).
150 Dunsmuir, supra note 23 involved a labour adjudicator’s jurisdiction to delve into the reasons given for the termination of a member of the civil service. The Court decides that the adjudicator’s interpretation of the governing statute was not entitled to deference. The case involved questions of deference (and as a related matter, procedural
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2.3.2.1.2 Conceptual Arguments
As we have seen, in Multani, the concurring justices deny that the Charter applies to adjudicated
administrative decisions based on their characterization of the language of section 1 of the
Charter (especially the “prescribed by law” criterion), the nature of Charter justification, and the
institutional role of administrative bodies (which they liken to courts). In Doré, the Court relies
on a similar mix of conceptual arguments, albeit in a more summary and elliptical fashion.
First, the Court cites the fact-intensive nature of administrative decision-making. The Court
suggests that, “[w]hen Charter values are applied to an individual administrative decision, they
are being applied in relation to a particular set of facts” (and this attracts deference),151 whereas,
“[w]hen a particular ‘law’ is being assessed for Charter compliance … we are dealing with
principles of general application.”152 We hear an echo of the first and second conceptual
arguments from Multani, discussed above,153 which I have suggested are flawed. In any event, an
administrative law case also involves the application of “principles of general application” (e.g.,
fairness) but not the Charter. Despite this, the Court indicates that, “constitutional issues” are “necessarily subject to correctness review because of the unique role of [section] 96 courts as interpreters of the Constitution” (ibid at para. 58, citations omitted). The same goes for 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’”, because “such questions require uniform and consistent answers” (ibid at paras. 50 and 60, citations omitted). Conway, supra note 7 deals directly with the Charter and affirms that “expert tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction” (ibid at para. 21). But the case does not suggest or imply that Charter values rather than Charter rights are at play in this context, and does not suggest that administrative tribunals should take a different approach to interpreting the Charter than the courts. On the contrary, the principle animating this case is that, “[w]e do not have one Charter for the courts and another for administrative tribunals” (ibid at para. 20). Indeed, the procedural concern that underlies this decision involve “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” (ibid at para. 79). All of this supports the idea that Charter justification and the proportionality test are the appropriate criterion and form of review for the judicial review of administrative decisions involving the Charter and section 1 of the Charter.
151 Doré, supra at para. 36, citing Dunsmuir, supra note 23 at para. 53
152 Doré, supra at para. 36.
153 That is, that administrative decisions are not “prescribed by law” for the purposes of section 1 of the Charter, and that Charter justification is based on the public interest whereas administrative decisions have to do with narrower interests.
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statutory objectives) to “a particular set of facts” (i.e., the claimant’s situation).154 Moreover,
whether a case turns on factual or legal issues might be relevant to the Court’s determination of
the standard of review, but not the criterion of review.
Second, the Court cites additional characteristics of administrative decision-making as
distinctive, but instead of elaborating this argument, circles back to its characterization of the
prescribed by law criterion; as I have suggested, the argument based on section 1 of the Charter
is flawed.155
Third and finally, the Court invokes the distinctive institutional role of administrative decision-
makers. The Court says that, “when exercising discretion 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.”156 We hear the echo of the third conceptual argument in Multani, discussed above;157 I have
also suggested that this argument is flawed.
The Court’s additional suggestion here, that “it is conceptually difficult to see what the ‘pressing
and substantial’ objective” of an administrative decision is in this context,158 is also surprising.
The objective of an administrative decision may be determined by reference to the statutory
154 Doré, supra at para. 36. Indeed, the premise for the Court’s approach in this case is that “administrative decisions are always required to consider fundamental values”. Ibid at para. 35 (emphasis in original).
155 Ibid at para. 37. The Court suggests that, “[t]he more flexible administrative approach to balancing Charter values is also more consistent with the nature of discretionary decision-making”, but does not explain what this means. Instead, the Court reiterates the idea that, “[s]ome 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.” The Court says that it will provide an example of this, but pivots back to the “prescribed by law” criterion, instead of discussing the Oakes test: “[f]or 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’”. Having been promised an argument about the nature of discretionary decision-making, we are returned to the argument that the Charter does not apply to administrative decisions because of the language of section 1 of the Charter.
156 Ibid at para. 38. See also ibid at para. 4 (“On whom does the onus lie, for example, to formulate and assert the pressing and substantial objective of an adjudicated decision, let alone justify it as rationally connected to, minimally impairing of, and proportional to that objective?”).
157 That is, that the Charter applies to administrative decision-makers in the same way the Charter applies to the courts, in developing the common law. See ibid at paras. 39-42.
158 Ibid at para. 38.
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objective of the decision-maker, and the policies and guidelines that she is authorized or required
to apply in a given situation. In all of the cases under discussion, including this one, the Court
has not appeared to have any difficulty determining the decision-maker’s objectives,159 and (as
discussed further below) the test that the Court develops in this context begins with attention to
the decision-maker’s statutory objectives or mandate. In summary, the conceptual arguments for
denying that the Charter applies in this context are not compelling.
2.3.2.1.3 Academic Authorities
Doré is densely threaded with academic references to the discussion of Slaight Communications,
Multani, and Baker. The references do not provide compelling new reasons for denying that the
Charter applies or for abandoning the proportionality test in this context.160
To begin with, the Court suggests that Slaight Communications has been criticized for endorsing
an impoverished conception of administrative law. The idea is that Slaight Communications
stands for the mistaken proposition that the principles, concepts, and categories of administrative
law are inadequate to deal with the fundamental values that underpin all of public law. For the
reasons already suggested, this may be a misreading of the case.161
In any event, the Court cites John Evans and Geneviève Cartier in support of this reading of the
case. The Court cites Evans for the idea that, “if courts were too quick to bypass administrative
law in favour of the Charter, ‘a rich source of thought and experience about law and government
159 See e.g. ibid at para. 61 (characterizing the relevant objective in this case as the prevention of incivility).
160 In addition to the papers that I discuss in this Part, the Court relies on Liston, supra note 148 (cited in Doré, supra at paras. 29, 35); Susan L. Gratton & Lorne Sossin, “In Search of Coherence: The Charter and Administrative Law under the McLachlin Court”, in David A. Wright and Adam M. Dodek, eds, Public Law at the McLachlin Court: The First Decade (Toronto: Irwin Law, 2011) 145 at 157 (cited in Doré, supra at paras. 29, 33-34); and Stéphane Bernatchez, “Les rapports entre le droit administratif et les droits et libertés: la révision judiciaire ou le contrôle constitutionnel?” (2010) 55 McGill LJ 641 (cited in Doré, supra at paras. 33, 36). On my reading of these materials, they parallel (in relevant part) the papers I discuss in the text and the reasons given by the Court for adopting the new approach that I have already discussed. That being said, a more complete exposition of the Court’s reasons for adopting the new approach would also address these materials.
161 See Part 2.1, above. I argue that Dickson CJ does not deny that administrative law involves attention to values, but endorses the idea that the Charter applies to administrative decisions because it is the supreme law of Canada and that the proportionality test is appropriate for applying section 1 of the Charter.
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will be overlooked or lost altogether’”.162 The Court cites Cartier for several ideas, including that
Charter values “infuse” administrative law, and that “[t]he Charter simply acts as ‘a reminder
that some values are clearly fundamental and ... cannot be violated lightly’”.163
As I understand the papers that are cited, Evans and Cartier draw attention to the values that are
implicated in administrative law, and they suggest that the common law of judicial review is
adequate to deal with values questions, but neither of them deny that the Charter applies in cases
involving Charter rights, or that the proportionality test is appropriate for applying section 1 of
the Charter.164 Instead, they suggest that we can enrich administrative law and constitutional law
by paying attention to how values are treated in each context. Evans suggests that we should look
to administrative law for guidance in identifying the principles of fundamental justice for the
purposes of applying section 7 of the Charter.165 Cartier suggests that we can look to the Charter
and the proportionality test for guidance in administrative law cases that implicate values outside
of the Charter context, such as fairness, dignity, and equality.166 Cartier acknowledges the
sophistication of the proportionality test for dealing with these values questions.167
162 Doré, supra at paras. 27 and 34, citing John Evans, The Principles of Fundamental Justice: The Constitution and the Common Law” (1991) 29 Osgoode Hall LJ 51 at 73.
163 Doré, supra at paras. 29 and 35, citing Cartier, supra note 33 at 75 and 86.
164 Evans advocates a more central role for the common law of administrative law in rights cases (supra note 162 at 73-74), but on my reading of his paper he does not deny that the Charter applies to cases that implicate Charter rights or suggest that we should not use the proportionality test to decide section 1 cases. For her part, Cartier expressly denies that the Charter “infuses administrative law with values”; she says that the same fundamental values underpin all of public law, including the Charter (“[t]he Charter nurtures administrative law, not because it infuses administrative law with values, since administrative law was itself born out of careful articulation of fundamental values (fairness, for example). Rather, the Charter gives the common law of administrative law the impulse to better articulate its constitutive values”, supra note 33 at 76).
165 See Evans, supra note 162 at 73-74 (“To attempt to attribute meaning to the principles of fundamental justice without first carefully considering the scope and limits of other legal bases of judicial review, and their rationales, is to interpret the Charter in a legal, political, and historical vacuum. Conversely, it would impoverish the development of the common law, if the Charter became virtually the only non-statutory source of law protecting the fundamental individual rights described in section 7.”).
166 See Cartier, supra note 33 at 70, n 31, and 73, 76, 80. Cartier’s concern is that treating the Charter as the only way to protect these values will blind us to how these values are implicated in non-Charter contexts, and forestall the development of analytical tools to protect these values when the Charter is not engaged (she calls this the “Charter effect”). Ibid at 75, 85-86.
167 See ibid at 70-71, 80.
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The Court suggests that Multani has been criticized on the same basis as Slaight
Communications (again, the idea being that these cases reflect an impoverished conception of
administrative law).168 Among other writers,169 the Court cites David Mullan for this idea, but he
appears to be saying something different than this. To begin with, he does not deny that the
Charter applies in this context.170 His objection to Multani is that it appears to foreclose any kind
of deference being paid to administrative decision-makers, because the majority applies a
correctness standard of review, including to the findings of fact.171 Mullan proposes that courts
should adopt a more flexible approach to determining the standard of review. In particular, he
suggests that decision-makers should be able to demonstrate that they are entitled to deference
“by providing reasons that show a heightened awareness of the constitutional rights at stake and
a rational basis [for their decisions] in terms of the parameters of those rights and the facts”.172 In
other words, he is describing a conception of Charter justification in which different decision-
makers might use different forms of analysis at first instance, to justify their entitlement to
deference from reviewing courts. But he is not (at least on my reading of the paper) endorsing a
new standard173 or form of review for reviewing courts to use.174
168 Doré, supra at para. 33 (“[t]he academic commentary that followed [Multani] was consistently critical. In brief, it generally argued that the use of a strict [section] 1 analysis reduced administrative law to having a formal role in controlling the exercise of discretion”).
169 Ibid, citing Mullan, supra note 32. I focus on Mullan’s argument here, with the caveats expressed in note 160, supra. The Court also cites Gratton & Sossin, supra note 160 at 157, who build on Cartier’s assessment of these cases, and Bernatchez, supra note 160, whose argument is largely consistent with Cartier’s and the reasoning of the concurring justices in Multani, supra.
170 Mullan expressly objects to the approach taken by the concurring justices in Multani; he says that “sweeping away” the Charter is inconsistent with precedent, theory and practice (supra note 32 at 143-144, note 64; 147-148).
171 Ibid at 142-143, 145. He contrasts this approach with that of earlier Charter cases, in which the Court had applied a correctness standard of review for questions of law, but a more deferential standard of review for questions of fact; he says that applying a correctness standard across the board looks like “micro-managing”. Ibid at 128-137, esp. at 136-137; 145.
172 Ibid at 146-149, esp. at 149.
173 To be clear, Mullan is proposing a flexible approach in which deference is earned by the administrative decision-maker by the giving of cogent reasons, but he allows that a correctness standard may still be appropriate to use when that is necessary to ensure that “Charter rights and freedoms are not ... devalued”. Ibid at 148, note 75; 149.
174 In fairness, we can see the links between Mullan’s characterization of adequate reasons in this context and the simplified forms of analysis that the Court adopts in Doré (for both decision-makers and reviewing courts to use).
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Finally, the Court returns to Baker. As we have seen, the Court treats this case as a watershed for
the proposition that administrative law incorporates Charter values (without decision-makers
becoming subject to the Charter). The Court, in developing its reading of this case, goes so far as
to suggest that, “[b]y recognizing that administrative decision-makers are both bound by
fundamental values and empowered to adjudicate them, Baker ceded interpretive authority on
those issues to those decision-makers”.175 The Court cites David Dyzenhaus and Evan Fox-
Decent for this proposition.176 I will suggest that these authors are saying something more
nuanced than this.
On my understanding of the paper that is cited, Dyzenhaus and Fox-Decent are talking about the
intersection of two ideas that come together in Baker, as a matter of administrative law: the idea
of “deference as respect” (i.e., that judicial deference to administrative decisions should involve
“respectful attention” to the reasons for decision), and the idea that administrative decision-
makers have a duty to give reasons.177 The authors suggest that, when these two ideas are
brought together, courts are put in the position of applying a reasonableness standard of review,
simply because they begin by considering the decision-maker’s reasons (as opposed to applying
a correctness standard, by which “the judge determines the legal answer and then reviews [the
Nonetheless, all of these forms of analysis share similar weaknesses. In any event, Mullan’s focus is the standard of review, not the form of review. While his argument may imply that a reviewing court should use a more flexible form of review in reviewing a decision-maker’s reasons, he does not argue (or provide reasons in support of the argument) that if the Charter does apply in this context, a reviewing court should use a less-structured substitute for the proportionality test. Mullan does emphasize that if the correctness standard applies across the board, reviewing courts will find themselves in the position of de novo appellate bodies, but this does not mean that they need to abandon the proportionality test as the form of review (see ibid at 145). Moreover, it could be argued that maintaining the proportionality test for decision-makers as well as reviewing courts to use is more consistent with the precedents that he cites approvingly, that treat administrative decision-makers with deference in relation to their findings of fact, while requiring them to “get the law correct” (see ibid at 136-137).
175 Doré, supra at para. 29 (emphasis added).
176 Ibid, citing Dyzenhaus & Fox-Decent, supra note 33 at 240.
177 See Dyzenhaus & Fox-Decent, supra note 33 at 239, discussing Dyzenhaus, “The Politics of Deference”, supra note 32 at 279. In Baker, the Court endorses the idea of deference as respect, and also decides that decision-makers have a duty to give reasons, “where the decision has important significance for the individual”, and in other situations. See Baker, supra note 34 at paras. 65, 43.
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reasons] only if the government’s answer differs”).178 In other words, the duty to give reasons
actually empowers decision-makers, because they are having their reasons considered and can
demonstrate that they are entitled to deference. This is the context for the authors’ statement,
alluded to in Doré,179 that, “[t]he idea of deference as respect not only gives the administration
the opportunity to demonstrate that it has acted in accordance with the rule of law but cedes to it
interpretative authority on that issue, in that the standard for review will not generally be the
correctness one”.180 In other words (at least for these authors) ‘ceding’ interpretative authority in
this context means giving administrative decision-makers a chance to demonstrate that they are
entitled to deference, by the giving of cogent reasons.
Nonetheless, they are also saying something about the sharing of interpretative authority. In this
paper, they are elaborating a conception of what I am calling administrative law justification.181
They are saying that the rule of law implies respect for human dignity, but also that it requires
that courts accede to the clearly expressed will of the legislature, with conflicts to be resolved as
a matter of politics.182 Accordingly, this implies that courts may need to defer to the government
in the administrative context.183 On the other hand, ensuring that conflicts involving dignitary
interests are pushed into the political realm requires transparency in the justification of the
exercise of public authority.184 Accordingly, the authors celebrate Baker for shifting attention to
“structures of justification” in administrative law, specifically with regard to procedural
178 Dyzenhaus & Fox-Decent, supra at note 33 at 235-236.
179 Doré, supra at para. 29.
180 Dyzenhaus & Fox-Decent, supra note 33 at 240 (emphasis added).
181 See Part 1.1.2, above.
182 See e.g. Dyzenhaus & Fox-Decent, supra note 33 at 197 (indicating that, “the common law has ultimately the same extra-legal guarantee against legislative disruption as general moral sensibilities, for when the common law does have to give way to statute, the remedy for the disruption to its order is to be found outside the law, in the source from which the disruption emanated -- in democratic politics”).
183 See ibid at 240-241 (“[i]n other words, while judicial protection of the rule of law may from time to time end in a stark confrontation between judges and legislature, there is no necessity to suppose that such protection requires, or even recommends, giving judges the last word”).
184 See ibid (“the rule of law depends, in the first instance, on the ability of the legal order to bring the excesses of politics to the surface and to force those who wish to violate fundamental democratic values to be explicit about it”).
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fairness.185 They also suggest that the Charter and the proportionality test can provide a model
for the adequate justification of the infringement of dignitary interests in this context.186
In summary, regardless of how these writers conceptualize public law as a unity (and some of
them are dealing with this question at a tangent), none of them provide a basis for denying that
the Charter applies to cases involving the Charter, and all of them affirm the importance of the
form of review for identifying and addressing the heightened interests that are at stake in these
types of cases. For my part, I am suggesting that it makes no sense to deny that the Charter
applies in this context, but that regardless of the criterion of review that we adopt, we should
adopt the proportionality test as the form of review. The coherence and signaling functions of the
proportionality test serve the needs of public law adjudication in this context in a more effective
way than the alternative that the Court adopts in Doré.
2.3.2.2 The New Criterion and Form of Review, Refined
In the concurring reasons in Multani, the proposed new form and criterion of review are
inchoate. In Doré, the Court invokes the concept of Charter values more firmly as the criterion
of review, and draws more explicit parallels with the proportionality test as the form of review,
but the nature of the Doré framework remains ambiguous.187
185 See ibid at 237-238, 240-241.
186 See ibid. For example, if the state infringes upon dignitary interests in the context of procedural justice, “the government must be prepared to offer a justification in a manner analogous to a [section] 1 justification under the Charter” (ibid at 240). Otherwise, the authors note that they are not addressing the relationship of administrative and constitutional law in detail, although their argument implies a “more democratic” stance toward rights adjudication, i.e., more sympathetic to the legislature than a U.S.-style conception of rights as trumps (ibid at 241, n 119).
187 Notably, in framing the case, the Court acknowledges that, “the protection of Charter guarantees is a fundamental and pervasive obligation, no matter which adjudicative forum is applying it”, as well as the necessity of ensuring “rigorous Charter protection” in these fora (Doré, supra at para. 4). Nonetheless, the Court asserts that administrative and constitutional law constitute separate “regimes” (ibid at para 4), and suggests that, in this context at least, the Charter “simply acts as ‘a reminder that some values are clearly fundamental and ... cannot be violated lightly’” (ibid at para. 35, citations omitted). The Court maintains the position that “an adjudicated administrative decision is not like a law” and that the “traditional [section 1] analysis” is an “awkward fit” for these decisions (ibid at para. 4), while maintaining that we can work with the “essence” of the proportionality test in this context, which the Court characterizes as “balance and proportionality” (ibid at para. 5).
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The criterion of review is ambiguous, because the source and scope of Charter values is
ambiguous.188 The Court says that decision-makers should protect “Charter guarantees and the
values they reflect”,189 which seems to suggest that rights will provide the reference point for
talking about the values underpinning them. But in some passages, the Court also refers to
Charter values as if they are more diverse than Charter rights (e.g., suggesting that they include
the values of accommodation, tolerance, and respect for diversity),190 and justiciable in
themselves.191 When the justices review the decision in this case, they seem to give effect to the
narrower conception of Charter values (because they are linked with Charter rights) while at the
same time blurring the question of whether Charter values are defined by reference to individual
or collective interests, or a balance of these.192
188 In one passage, the concurring justices makes it sound like Charter values are the same as other fundamental values in the legal-political system, and the Charter just signals or indicates that some of them are especially important (ibid at para. 35). In another passage, the Court makes it sound like Charter values originate in the Charter, in that Charter values “infuse” administrative law (ibid at para. 29). Despite the figurative language in the second passage, perhaps they are saying the same thing, that Charter rights provide the reference point for talking about the values underpinning them. See further, Christopher D. Bredt & Ewa Krajewska, “Doré: All that Glitters is Not Gold” (2014) 67 SCLR (2d) 339 at paras. 35, 48-56; compare Horner, supra note 56 at 375.
189 Doré, supra at paras. 3-5.
190 Ibid at para. 49, citing Chamberlain v. Surrey School District No. 36, 2002 SCC 86 at para. 21 [Chamberlain].
191 See Doré, supra at para. 23 (discussing “compliance with Charter values”) and para. 24 (saying that “decision-makers must act consistently with the values underlying the grant of discretion, including Charter values”).
192 In framing the test to be applied, the Court refers interchangeably to the “Charter value” and the Charter “protection” at issue, and the “Charter rights” that an administrative decision “implicates” (see ibid at paras. 55-58.). All of this suggests that “Charter values” are really the purposes underlying Charter rights, and that Charter rights provide the reference point for talking about the values underpinning them, but these tensions are not clearly resolved when the Court deals with the Charter values engaged in this case (for an overview of the facts, see note 133, supra). The Court says the relevant Charter value in this case is “expression”, but specifically “how it should be applied in the context of a lawyer’s professional duties” (ibid at para. 59). In other words, the Court specifies the value of expression in this context by reference to the public interests it serves in the context of the case; in this case, “the public benefit in ensuring the right of lawyers to express themselves about the justice system in general and judges in particular”, i.e., criticizing the courts (ibid at para. 63). All of this looks like identifying the Charter right that is at stake, and then considering how strong the claim is by reference to the values underlying the right. But the values underlying the freedom of expression also implicate Doré’s personal interests. By contrast with the SCC, the Court of Appeal also considers the nature of Doré’s claim in light of the purposes of free expression, but focuses on Doré’s personal interest in expression, not the public interest that his expression serves. The Court of Appeal decides that Doré’s expressive interest was of “limited importance” in this case, because his expression consisted of “insults and personal attacks”, whereas the freedom of expression is rooted in “the pursuit of truth, participation in the community, individual self-fulfillment, and human flourishing”. See 2010 QCCA 24 at para. 36 (citing Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at 976). We might attribute the difference in approach to the focus of the SCC on the context in which the expressive interest arises (i.e., in the context of the regulation of the profession) but the Court does not explore these tensions.
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The form of review is ambiguous because the Court describes the test to be applied as a matter of
“balancing”, but joins this idea with the concepts of minimal impairment and proportionality.
That is, the Court says that decision-makers should balance “Charter values” with their
“statutory objectives”,193 but then explains this idea as a matter of minimal impairment194 and
proportionality.195 On judicial review, these ideas are integrated: “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….”196 In closing, the Court also suggests that the new approach
involves “integrating the spirit of [section] 1 into judicial review”, but here the Court simply
means that the new approach involves the same kind of deference as the old approach.197 The
Court styles all of this as a reasonableness test.198
Accordingly, the Doré framework is still beset by ambiguities. When the Court talks about
“Charter values”, is it referring to individual rights, the values underpinning them, the idea that
rights can be limited, or the integrated political concept of rights and justified limitations on
rights? Or all of these? Should we balance individual and collective interests to define the
“values” at stake in a case, before we balance these “values” against the statutory objectives? 199
193 Doré, supra at paras. 55-56.
194 Ibid (“[i]n effecting this balancing, the decision-maker should first consider the statutory objectives… Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives”).
195 Ibid (“[t]his ... requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives”).
196 Ibid at paras. 57-58.
197 Ibid at para. 56 (“there is ... 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.”).
198 Ibid at paras. 57-58 (“[i]f, 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”).
199 It may be noted that, from one passage to the next, one of the formulations of the test on judicial review implies that Charter values may be implicated on both sides of the case (insofar as the issue on judicial review is “whether … the decision reflects a proportionate balancing of the Charter protections at play”, using a plural), whereas another formulation suggests that the Charter interests will be on one side of the case and the statutory objectives
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Is this test ultimately about balancing? Or is it about minimal impairment and proportionality?
Ultimately, because the new approach does not involve considering how the statutory objectives
relate to the Charter values in a case (in the sense of being important enough to limit them, or of
furthering the same values or competing values), how the interplay of values should be handled
in this framework remains ambiguous.200
will be on the other (insofar as the Court frames the issue as whether “the decision-maker has properly balanced the relevant Charter value with the statutory objectives”). See ibid at paras. 57-58.
200 The Court’s handling of the test in this case does not clarify these tensions. For a discussion of the facts, see note 133, supra. As discussed in note 192, supra the Court says that the Charter value in this case is “expression”, and “how it should be applied in the context of a lawyer’s professional duties” (ibid at para. 59). The statutory objective is preventing incivility, which the Court connects with the public interest in lawyers behaving with “dignified restraint” and “professionalism” (ibid at paras 61, 68-69). However, the Court does not consider how the competing interests in this case are actually linked, in the sense that preventing incivility helps to ensure that lawyers are free to express themselves. In any event, stepping back, we understand that Doré was under a duty to behave with lawyerly restraint, and that his attack on the judge violated public expectations of lawyerly restraint. Accordingly, this looks like an easy case, especially because the only question to be determined was whether the Barreau’s decision to reprimand was reasonable (the length of the suspension was not being challenged) (ibid at para. 67). But it is difficult to pinpoint precisely what makes the decision reasonable or proportional in the Doré sense. We understand that the “value” of “expression” is implicated in this case, and that it intersects with competing public interests, but Doré’s own interests in this case remain ambiguous, and it is hard to see how all of these interests connect with each other. The Court does not actually consider the impact of the decision on Doré, personally or professionally, or whether the decision could be described as minimally impairing in any sense.
Compare the Court of Appeal’s reasons, supra note 192. The Court of Appeal also dismisses Doré’s appeal, but applies the proportionality test methodically. To begin with, the court focuses on Doré’s interest in expression, not the public interest in expression. The court decides that his expressive interest was of “limited importance” in this case, because it consisted of “insults and personal attacks”, whereas the freedom of expression is rooted in “the pursuit of truth, participation in the community, individual self-fulfillment, and human flourishing” (ibid at para. 36). Applying the proportionality test, the court affirms that the Code, and that the Barreau’s application of the Code, pursues pressing and substantial objectives, and that the Barreau’s decision was rationally connected with these objectives (ibid at paras. 37-42, 44-46, esp. at para. 44). The decision was minimally impairing of Doré’s rights, because it did not go beyond what was required to fulfill its disciplinary purpose: it was “measured”, because it did not completely prohibit Doré’s freedom of expression, but was limited to constraining his “immoderate” comments (e.g., Doré’s formal complaint about the judge was not affected; it was allowed to proceed and indeed resulted in a reprimand of the judge) (ibid at paras. 47-49.). Finally, the decision was proportional, in the sense that it did “not restrict, any more than necessary, the appellant’s freedom of expression as a member of a professional order or with regard to the duties and privileges that flow from this status” (ibid at paras. 50-53, esp. at para. 51.).
Are Charter justification and the proportionality test really such an “awkward fit” for this decision? They do not appear to be. The courts are able to state the pressing and substantial objectives the decision serves, and the Barreau and the Province of Québec are able to defend it (in this case, successfully). This seems to have been an easy enough case for determining that the decision in question was rationally connected with its objective, minimally impairing of the claimant’s rights, and proportional overall. In fairness, the one aspect of this case that none of these decisions reflects is the manner in which the constraint itself is consistent with Doré’s freedom of expression. Arguably, the Code’s constraints on dignity in themselves support an environment in which everyone is free to express themselves, the limitation on Doré’s freedom of expression is rooted in the same values, and the value of his expression could not outweigh the expressive interest being promoted by the disciplinary committee.
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Circling back to the Court’s ambitions for the new approach, does it promote the interests of
predictability and consistency? How could it? What shall we do in a hard case, when the
statutory objective is disputed along with every other question, and when the identification of the
shared interests in a case could be decisive? That is what SL and Loyola look like, and the Doré
framework provides very little guidance in these cases.
The Religious Education Cases SL and Loyola illustrate the limitations of the Doré framework.201 They involve claimants
partaking of a public interest that is being promoted by the state, because they involve a collision
of religious practice with a public policy of promoting understanding and respect for religious
practice. The cases illustrate, in complementary ways, how applying the proportionality test can
bring these interests to light, illuminate how they relate to each other, and provide a framework
for resolving the tensions among them in a compelling way (the coherence function), while
helping to indicate whether constraints on rights are being caused by an implementation decision
or the statutory framework itself (the signalling function).
3.1 Overview of the Argument In the Province of Quebec, public education was entirely religious or confessional in character
until the turn of the millennium.202 A provincial department of education was established in
1964, but the denominational school system (administered by separate Catholic and Protestant
school boards) remained in place until the 1990s, when the public schools were reorganized on a
Nonetheless, this is a line of reasoning that the application of the proportionality test can bring into focus more clearly than the alternatives.
201 In this Part (especially in Parts 3.2 and 3.3), I draw on my term paper, “Public Reason and the Proportionality Test” (Dec. 19, 2017), in the course, “Religion and the Liberal State” (LAW321H1F). Hereinafter I will also be referring to the lower court decisions in Loyola High School c. Courchesne, 2010 QCCS 2631 [Loyola SC] and Québec (Procureur général) c. Loyola High School, 2012 QCCA 2139 [Loyola CA].
202 See SL, supra at paras. 12-16, 34, 36; Loyola, supra at paras. 8-19. See further Spencer Boudreau, “From Confessional to Cultural: Religious Education in the Schools of Québec” (2011), 38 Religion & Education 212.
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linguistic basis203 and religious education was privatized. In connection with the secularization of
the school system, Québec instituted a province-wide, mandatory educational program (for
public as well as private schools) in religious culture and ethics, called the “Ethics and Religious
Culture Program” (the “ERC Program”/the “Program”).
The name of the Program reflects its deliberate emphasis upon religious culture (as opposed to
doctrine) and ethics (as opposed to a particular conception of morality).204 It represents a
deliberate break with the religious education of the past, replacing the separate courses of moral
and religious instruction historically taught in Catholic and Protestant schools, from a religious
perspective, with a common course for all schools, taught from a neutral perspective. The
Program literature states that, “it does not espouse any particular set of beliefs or moral
references”, and its “objective is not to propose or impose moral rules”.205 Instead, with its
emphasis on culture and ethics, neutral orientation, and universal application, the Program
“offers students from all backgrounds the tools necessary for a better comprehension of our
society and its cultural and religious heritage”,206 with the intention that, “by promoting the
development of attitudes of tolerance, respect and openness, we are preparing them to live in a
pluralist and democratic society.”207 The Program was required to be taught in all schools
beginning in 2008-2009. Each school was free to design its own course to meet the Program
requirements. Students could apply for an exemption from taking the Program on grounds of
203 See Boudreau, supra note 202 at 214; see also, Constitution Amendment, 1997 (Quebec), S.I./97-141, C.Gaz. 1997.II.1 (abrogating section 93 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 133).
204 Loyola, supra (Exhibit NK-3, Ethics and Religious Culture Program [English version], Appellant’s Record, vol. 2, pp. 138-220, at 139-140). For the current description of the Program, see Quebec Ministry of Education, Recreation and Sport, “Ethics and Religious Culture Program”, online: <http://www.education.gouv.qc.ca>.
205 Ibid.
206 Ibid.
207 Ibid.
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serious harm,208 and schools could apply for an exemption if they offered a course that the
Minister of Education considered to be “equivalent”.209
The Program has been challenged twice in the SCC on the basis that it infringes the freedom of
religion; the first case involved a public school, the second case a private school. In the first case,
SL, the Catholic parents of children enrolled in a public school alleged that, by promoting a form
of relativism, the Program interfered with their ability to pass on the precepts of their faith to
their children.210 The Court rejected these claims, holding that the Program is neutral (amounting
to a “comprehensive presentation of various religions without forcing the children to join
them”),211 and that being exposed to different ideas at school is a fact of life. The legal premise
for these conclusions was that the claimants’ rights were not infringed, because their rights were
not absolute. The problem with this line of reasoning is that it forecloses consideration of the
very issues the Court is being asked to address: why the claimants’ rights are not absolute
(because everyone has an interest in the state promoting respect for difference), who is
promoting the competing interests (the state), how the competing interests are being promoted
(through the institution of the Program and the limitation of exemptions from the Program), how
the claimants’ rights are being constrained in this case (through the denial of an exemption), the
ultimate source of the constraint (ostensibly the exemption decision but perhaps the statutory
limitation of exemptions, or the combination of the statutory limitation with the Program itself)
and whether these constraints on the claimant’s rights are justifiable. The Court sidesteps all of
this, but these are precisely the kinds of interests, tensions among interests, and sources of
constraint, that the proportionality test can help to identify and address.
208 SL, supra at para. 3. See also, Education Act, R.S.Q., c. I-13.3, s. 222 (“For humanitarian reasons or to avoid serious harm to a student, the school board may … exempt [a] student from the application of a provision of the basic school regulation”).
209 Loyola, supra at paras. 22-23. See also, Regulation respecting the application of the Act respecting private education, CQLR, c. E-9.1, r. 1, s. 22 (“Every institution shall be exempt from the [compulsory curriculum] provided the institution dispenses programs of studies which the Minister of Education, Recreation and Sports judges equivalent”).
210 For a detailed summary of the parents’ claims, see note 237, infra.
211 SL, supra at para. 36 (quoting the application judge, in the Court’s translation).
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In the second case, Loyola, a private Catholic high school argued that having to teach religious
culture and ethics on a neutral basis interfered with its character as a Catholic institution. The
school proposed to teach a more in-depth course about religion and ethics, largely from a
Catholic perspective, and sought an exemption from teaching the Program on the basis that it
was “equivalent” to the Program. Accordingly, the case turns on whether the two approaches to
teaching the Program -- neutral and religious -- are “equivalent”. The Minister decides that they
are not.
The majority of the Court, applying the Doré framework, decides that the Minister’s decision is
unreasonable, but only in relation to the teaching of Catholicism. For the purpose of teaching
Catholicism, the majority says that the equivalence test should focus on the Program’s high-level
objectives (i.e., the recognition of others and the pursuit of the common good), without regard to
the neutrality requirement. With regard to these objectives, the majority decides that the two
approaches to teaching the Program are equivalent. By contrast, for the purpose of teaching the
ethics and culture of other religions, the majority decides that the school’s religious freedom is
not infringed by the Minister’s decision, and the same reasoning from SL applies. The problem
with this line of reasoning is that it strongly suggests that, with regard to the school’s teaching of
the ethics and culture of other religions, the Minister’s decision was reasonable; and that it is
reasonable to conclude, at least in this context, that the neutral and religious approaches to
teaching the Program are not equivalent. But this implies that the equivalence test can take into
account more than the Program’s high-level objectives; it can also take into account the
Program’s deeper objectives and design. Indeed, in this context, the majority says that the
neutrality requirement is “essential to achieving [the Program’s] objectives”.212 In effect, the
majority endorses two approaches to the equivalence test, depending on the interests that are
engaged by the Minister’s decision.
This treatment of the equivalence test begs the question of whether the majority is imposing a
“proper balance” of statutory objectives and Charter rights in this case,213 or instead bending the
statutory framework out of shape, by requiring that a Charter right be accommodated within a
212 Loyola, supra at para. 80.
213 Doré, supra at paras. 7 and 58.
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framework that appears to be (at least in this policy context) designed to impose limitations on
Charter rights. If this is a fair account of how the statutory framework operates in this case,214
then the majority should have focused on the statutory framework itself (i.e., how the
equivalence test works when it is coupled with the Program, including its deeper objectives and
design, and including the neutrality requirement), and considered whether the statutory
framework (rather than the Minister’s decision to implement the framework) was justifiable.215
The dissenting justices, applying Charter justification as the criterion of review, and a simplified
version of the proportionality test as the form of review (focusing on minimal impairment),
decide that the Minister’s decision in its entirety constitutes an unjustifiable infringement of the
school’s religious freedom. Their assessment of the school’s proposed course is more nuanced
than the majority’s, and may provide a more compelling basis for deciding that the two
approaches to teaching the course are equivalent, but their reasons nonetheless raise the same
issue as the majority’s. The tensions that arise in the Minister’s application of the equivalence
test, by reference to the Program (including its neutrality requirement), demand attention to the
statutory framework itself.
By contrast with the Doré test that the majority applies (and the simplified version of the
proportionality test that the dissenting justices apply), applying the proportionality test in Loyola
could bring all of these tensions into focus, because it draws our attention to the statutory
objectives and the means chosen by the decision-maker to pursue them. The focus on state
objectives triggers the coherence function of the test, by providing a framework for considering
the interests that the Program promotes (e.g., promoting understanding and respect for religious
practice), and why these interests might be compelling enough to justify imposing limitations on
the claimant’s rights. Meanwhile, each step of the test triggers the signalling function of the test,
by providing indications of how the state’s activity imposes constraints on the claimant’s rights.
214 My thanks to Lorraine Weinrib for emphasizing this dynamic to me as a feature of the overall policy.
215 In which case, the Court would apply the Charter using proportionality test, because a law/regulation was being challenged, reminding us that, as Evan Fox-Decent and Alexander Pless suggest, “one can legitimately question why, when the Constitution is the supreme law of Canada, there would be two different approaches to determining the constitutionality of government action depending on whether that action is expressly authorized by legislation or not.” See “The Charter and Administrative Law, Part II: Substantive Review”, in Colleen M. Flood & Lorne Sossin, eds, Administrative Law in Context, 3rd ed (Toronto: Emond Montgomery Publications, 2017) 507 at 513.
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In this case, if the Minister was pursuing a statutory objective that was inimical to the freedom of
religion (and the Court suggests that she was),216 then we need to consider the statutory
framework. If the Minister was acting rationally, and had no meaningful alternatives for
achieving her statutory objective, and if the decision, as a consequence, had a disproportionate
impact on the claimant’s rights, then we need to consider the statutory framework. In each of
these situations, instead of saying that the religious and neutral approaches to teaching the
Program are “equivalent” (in any respect), we may focus, instead, on whether the “equivalence”
test (applied by reference to the Program) is adequate to protect the school’s religious freedom;
or, conversely, whether the statutory framework imposes a justifiable limitation on the school’s
rights. These are the lines of reasoning that the reasons in Loyola obscure, but that the
proportionality test could help bring to light.
3.2 Background to the Cases
3.2.1 The Ethics and Religious Culture Program
The ERC Program was instituted with two core objectives, “the recognition of others”, “based on
the principle that all people possess equal value and dignity”; and “the pursuit of the common
good”, in the sense of fostering “shared values of human rights and democracy”.217 The
overarching goal is to “inculcate in all students openness to diversity and respect for others.”218
More narrowly, schools are required to design their own curricula to teach three components --
culture, ethics, and dialogue -- and their associated competencies:219 the goal is for students to
understand religious culture,220 reflect on ethical questions,221 and engage in dialogue.222 These
216 See e.g. Loyola, supra at para. 68 (noting that the Minister’s decision “treats teaching any part of the proposed alternative program from a Catholic perspective as necessarily inimical to the state’s core objectives in imposing the [Program]”) and para. 54 (“a reasonable interpretation of the process for granting exemptions … would leave at least some room for the religious character of those schools. The regulation ... would otherwise operate to prevent what the Act respecting private education itself allows—a private school being denominational.”).
217 Ibid at para. 11.
218 Ibid.
219 Ibid. at paras. 11-19, 55.
220 Ibid at para. 13, 17 (“the purpose of the religious culture component is to help students understand the main elements of religion by exploring the socio-cultural contexts in which different religions take root and develop”;
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are intended to reinforce each other (and the dialogue component is integrated into the other
two).223
In service of these objectives, the Program includes a methodological requirement of neutrality:
teachers may structure the course and develop their own lessons,224 but they are expected to
present their material in a neutral manner. The goal is to help students “develop the critical
capacity to understand, articulate and question different points of view”, not to advance the truth
content of any particular set of beliefs; teachers are to act as “mediators”.225
In summary, as the majority acknowledges, “[t]he orientation of the [Program] is strictly secular
and cultural”.226 Accordingly, SL raises the question of whether a harm-based exemption is
appropriate for a religious student.227 Loyola raises the question of whether a course that is
doctrinal and religious, rather than cultural and neutral, is “equivalent” to it.228
students “learn about the founding and development of different world religions”; they “explore the elements of religious traditions, including different representations of divinity, creation stories, and religious rites, rules and duties”; and they “draw on literature to explore different kinds of religious experiences, methodologies for transmitting religion, and ways religious experiences shape people and communities.”)
221 Ibid at paras. 14, 18 (“the purpose of the ethics component is to encourage students to critically reflect on their own ethical conduct and that of others, as well as on the values and norms that different religious and social groups adopt to guide their behaviour”; they “develop competency in ethics by exploring themes such as freedom, autonomy, and tolerance, among others”.)
222 Ibid at paras. 15, 18 (“the purpose of the dialogue component … is to help students develop the skills to interact respectfully with people of different beliefs in a diverse society”, including understanding “the impact of their behaviour on the broader community” and “learning about different forms of dialogue; strategies for developing, explaining or challenging a point of view; and processes and patterns of thought that can undermine dialogue, such as stereotyping and prejudice.”)
223 Ibid at paras. 11-12, 15.
224 Ibid at paras. 16 and 55.
225 Ibid at para. 19.
226 Ibid at para. 19.
227 SL, supra at para. 3.
228 Loyola, supra at paras. 22-23.
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3.2.2 The Freedom of Religion
The cases were argued by reference to section 2(a) of the Charter,229 and the Court considers
whether these rights/values were infringed using the established doctrines of Charter
adjudication. On this approach, the Court will first consider whether the claimant’s rights are
engaged, based on whether she sincerely believes that she has “an obligation to act in accordance
with a practice, or endorses a belief, ‘having a nexus with religion’”; this test is subjective.230
Next, the Court will ask whether the claimant’s rights are infringed, in the sense of being subject
to interference that is “more than trivial or insubstantial”; this test is objective (so as not to
“allow persons to conclude themselves that their rights had been infringed and thus to supplant
the courts in this role”).231
The Court has also described this test as a contextual matter, and has suggested that the
claimant’s rights may be limited before they are found to be infringed, because of the need to
strike a balance among competing rights.232 The Court has adopted this approach, for example, in
the case of Syndicat Northcrest v. Amselem,233 concerning whether Orthodox Jews should be
allowed to set up succahs on the private balconies of a co-owned property, contrary to the terms
of their co-ownership agreements. It should be emphasized, however, that Anselem was a case
involving private citizens; the state was not involved. Adopting the same approach to balancing
competing rights when the state is promoting the competing interests is problematic, because it
incorporates into the delineation of the claimant’s rights the very kinds of balancing
considerations that are appropriate to a section 1 analysis.234 As discussed below, this is what
happens in SL (and to a degree in Loyola), because the Court constrains the claimant’s rights
229 In SL, supra the claimants also invoked the freedom of religion under the Quebec Charter of human rights and freedoms, R.S.Q., c. C-12, s. 3 [Quebec Charter]; the SCC does not consider this claim separately.
230 SL, supra at para. 22, citing Syndicat Northcrest v. Amselem, 2004 SCC 47 at paras. 39, 43, 46 and 54 [Ameselem].
231 SL, supra at paras. 23-24; see also Amselem, supra note 230 at paras. 57-63.
232 Amselem, supra note 230 at paras. 57-63 (i.e., because “[c]onduct which would potentially cause harm to or interference with the rights of others would not automatically be protected”).
233 Amselem, supra note 230.
234 See e.g. Multani, supra at paras. 24-30.
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based on competing rights interests, without naming these interests and associating them with the
state, which is promoting them.
3.3 The Public School Case: S.L. v. Commission scolaire des Chênes
In SL, the claimants were Catholic parents of children enrolled in a public school. They were
denied an exemption from the Program for their children before it was taught.235 The Court
accepted that the parents sincerely believed that they had “an obligation to pass on the precepts
of the Catholic religion to their children”, but ruled that they had failed to demonstrate, on an
objective basis, that their rights had been interfered with.236
The Court reduced the parents’ claims to two arguments, both centred on the contents of the
Program:237 first, that their right to pass on the precepts of their faith would be interfered with,
because the Program was not in fact neutral (because it promotes “a form of relativism”); second,
that their children’s religious freedom would be interfered with, because of the “disruption” of
being exposed to “different beliefs ... presented on an equal footing”.238
With regard to the parental claim (dealing with the neutrality of the Program), the Court
emphasizes that “absolute neutrality does not exist”.239 As a matter of principle, the Court was
235 SL, supra at paras. 3-4.
236 Ibid at paras. 2, 26.
237 Ibid at paras. 26-29. Notably, the Court faults the parents for failing to specify the infringement. According to the majority, the parents argued that, (1) they were losing the right to choose an education consistent with their own moral and religious principles, and that (in any event) their children were being forced to “take a course that does not reflect the religious and philosophical beliefs with which their parents have the right and duty to bring them up”; (2) their children were going to be forced to learn “from a teacher who is not adequately trained in the subject matter”; (3) their children were going to be upset by the exposure, at too young an age, to “convictions and beliefs that differ from the ones favoured by their parents”; and (summarizing the parents’ remaining arguments) their children were being exposed to “the philosophical trend advocated by the state, namely relativism”. Ibid. Justice LeBel, dissenting, summarizes the parents’ arguments differently: “First, the program advocates a relativistic view of religions. Next, it conveys the idea that religious values do not constitute a sound basis for making ethical decisions. Finally, the ERC Program tends to place children in a moral vacuum by requiring them to put aside their religious values when discussing ethical questions in class.” Ibid at para. 47, LeBel J, dissenting.
238 Ibid at paras. 26-29, 38.
239 Ibid at paras. 30-31.
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satisfied that, “state neutrality is assured when the state neither favours nor hinders any particular
religious belief, that is, when it shows respect for all postures towards religion ... while taking
into account the competing constitutional rights of the individuals affected.”240 In this case, the
Court was satisfied that the Program’s purpose “does not appear to have been to transmit a
philosophy based on relativism or to influence young people’s specific beliefs”.241 As to the
Program’s anticipated effects, it does not amount to “indoctrination”.242 The Court accepts the
application judge’s conclusion that, “[u]nder the [Program], the school will present the range of
different religions and get children to talk about self-recognition and the common good”, and
that “the additional work that must be done for religious practice is up to the parents and the
pastors of the Church to which the parents and children belong.”243 In essence, “what is done is
to make a comprehensive presentation of various religions without forcing the children to join
them”.244
With regard to the children’s interests (dealing with being exposed to different religious facts),
the Court emphasizes that “cognitive dissonance” in public schools, through the encounter with
competing value systems, is “part of living in a diverse society” and “part of growing up.”245
Indeed, “[t]hrough such experiences, children come to realize that not all of their values are
shared by others”, and this “is arguably necessary if children are to be taught what tolerance
itself involves”.246 The Court concludes that,
Parents are free to pass their personal beliefs on to their children if they so wish. However, … [t]he suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian
240 Ibid at para. 32.
241 Ibid at para. 35.
242 Ibid at para. 37.
243 Ibid at para. 36 (quoting the application judge, in the Court’s translation).
244 Ibid.
245 Ibid at para. 39, quoting Chamberlain, supra note 190 at paras. 65-66.
246 Ibid.
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society and ignores the Quebec government’s obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement ...247
In dissent, LeBel J would have dismissed the appeal because the Program had never been taught;
the parents were unable to demonstrate, on the basis of objective evidence, that the Program
would infringe their rights.248
Anticipating Loyola, the Court’s reasons are noteworthy for four reasons. The Court decides,
first, that the Program’s content is neutral with regard to truth claims about religion; second, in-
school exposure to competing value systems is “part of living in a diverse society”; and third,
state-imposed burdens on moral instruction (at least in this context) may not even rise to the level
of an interference with religious freedom. Similar tensions are handled very differently in
Loyola. Fourth and finally, the Court’s reasons suggest how using the proportionality test might
have helped the Court to address the interests in these cases in a more transparent way. In SL, the
Court identifies the competing interests that arise in connection with the Program (including the
public interest in policies that promote respect for difference and multiculturalism) but without
connecting them with each other (in the sense that religious families benefit from these policies,
too) and without associating the public interest with the government’s objectives in instituting
the Program and limiting exemptions from it. Instead, the Court treats the claimants’ interests as
being so naturally limited by an abstract public interest that their religious freedom is not even
infringed. Yet that is precisely the tension that the Court is being asked to address (and that the
proportionality test could help to bring into focus).249
247 SL, supra at para. 40.
248 Ibid at paras. 53-58 LeBel J, dissenting. He emphasizes that the Ministry’s description of the Program alone is insufficient to establish an infringement.
249 In the course of these reasons, the Court repeatedly states that “no right is absolute”, but in doing so, the Court threads together three very different ideas about the justifiable limitation of rights: the first idea is that trivial infringements are not actionable; the second idea is that rights may be limited by competing rights (separately and apart from state-imposed limitations on rights); the third idea is that the state may impose limitations on rights, if that can be justified under section 1 of the Charter (see ibid at paras. 25 and 31-32). The Court emphasizes the first idea, that trivial infringements are not actionable, insofar as it determines that the parents’ rights are not infringed because the Program is neutral (ibid at paras. 34-37), and that the children’s rights are not infringed because the exposure of children to cognitive dissonance is a fact of life in society (ibid at para. 40). Reading the decision as a whole, however, it becomes apparent that each of these three ideas is engaged, and the Court develops the theme of
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3.4 The Private School Case: Loyola High School v. Quebec (Attorney General)
3.4.1 The Facts of the Case
Loyola is an anglophone Jesuit high school in Quebec.250 The school requested an exemption
from the Program before it was required to be taught, by proposing to teach an alternative
course.251 In the words of the majority, the school “claimed that the [Program] was incompatible
with [its] Catholic mission and convictions and proposed an alternative program that placed
greater emphasis on Catholic beliefs and ethics.”252 In the words of the majority, the school’s
proposal253 “presents the religious and ethical teachings of the Catholic Church as a central
component ... and as the basis upon which students should learn about other religions” (for
balancing competing rights at each stage of its reasons. In the opening paragraph of the decision, the Court says that the context for the decision is the emerging social recognition of the rights of minorities (ibid at para. 1). The Court returns to this theme of balancing rights in stating the law to be applied (ibid at para. 25), in considering the parents’ constitutional interests (ibid at para. 32), and in considering the children’s constitutional interests (ibid at para. 40). In none of these references to balancing does the Court associate the competing rights interests with the Program or the state, except for the last mention. In the last mention, after deciding that exposure to different ideas is a fact of life in society, the Court adds that, “[t]he suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education” (ibid). Yet, even here, after adverting to the government’s “obligations with regard to public education”, the Court does not associate the government’s institution of the Program with its fulfillment of these obligations. In the result, the Court introduces an ‘internal limit’ on the claimants’ freedom of religion, but without clearly identifying whose rights take precedence to theirs, or whether in fact the government is promoting these competing rights interests. By contrast, if the Court had decided that there was an infringement of the parents’ rights (e.g., for the simple reason that the Program interrupted their ability to pass on the precepts of their faith to their children) then the Court might have associated the countervailing interests in this case -- i.e., the Quebec government’s obligations with regard to public education (ibid at para. 40), and the value of teaching children what tolerance involves (ibid at para. 39) -- with the state’s interest in fostering the conditions in which everyone in the province could enjoy their freedom of religion, including the claimants, and affirming the “multicultural reality of Canadian society” under section 27 of the Charter (ibid at para. 40; see also Charter, supra s. 27, providing that the Charter “shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”).
250 See Loyola, supra at para. 7; see also, Loyola SC, supra at paras. 19-21, 35. A parent of a student was also a claimant but the Court does not consider his specific interests (see further Loyola SC, supra at para. 26-28).
251 See Loyola SC, supra at paras. 34-35. The application judge reproduces the first letter from Loyola to the Minister, dated March 30, 2008, in ibid at para. 35.
252 Loyola, supra at para. 24.
253 Loyola SC, supra at para. 36; the summary is three pages including a description of the school’s community service program. See Loyola, supra (Exhibit P-2, Appellant’s Record, vol. V, pp. 165-167).
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example, “[t]he third year of the program ... centers on Jesus as the model of full humanness”).254
The dialogue competency was not expressly addressed.255
The Minister interpreted this as a “departure from teaching the [Program] altogether”, and denied
the request for an exemption.256 Nonetheless, the Minister invited the school to consider other
ways of teaching a course on Catholicism, in addition to teaching the Program.257 In response,
the school wrote to the Minister again, seeking to explain how its proposed course met the
objectives of the Program (and reiterating that, in the words of the majority, “the religious nature
of the school prevented it from teaching Catholic beliefs or other religions from a ‘neutral’ or
detached perspective”).258 The Minister denied the second request. In a detailed letter, an
assistant deputy minister explained that, “in terms of its approach, goals and content”, the
school’s proposal is “very different” from the Program, including because its main goal is the
254 Loyola, supra at para. 25.
255 Ibid. On the ambiguities concerning the school’s proposed treatment of the dialogue component, see note 326, infra and corresponding text.
256 Ibid at para. 26.
257 The application judge reproduces the Minister’s first response to Loyola, dated August 7, 2008, in Loyola SC, supra at para. 37 (“I invite you to examine other solutions that would enable you to teach Catholic Moral and Religious Education in addition to Ethics and Religious Culture”). The application judge also notes that the law “does not prohibit a private educational institution from dispensing a denominational or religious education to its students in addition to teaching them compulsory subjects” (ibid at para. 69).
258 Loyola, supra at para. 27. The application judge reproduces the school’s second letter to the Minister, dated August 25, 2008, in Loyola SC, supra at para. 38. The school also offers to review the proposal with the Minister.
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transmission of Catholic beliefs and convictions.259 Again, the Minister suggested that Loyola
could teach a separate course on Catholicism.260
In the course of the judicial review proceedings, the parties supplemented the record.261 Loyola’s
position also changed.262 The school eventually conceded that it could teach the culture of other
religions from a neutral perspective, although (according to the majority) it still “took no
position” on the dialogue component of the Program.263
In its pleadings, Loyola frames its claim in relation to the Program’s contents, alleging that it
promotes a form of “normative pluralism” (similar to the allegations in SL).264 In the SCC, the
259 Loyola, supra at para. 28. The application judge reproduces the Minister’s second letter to the school (technically, from the Assistant Deputy Minister), dated November 13, 2008, in Loyola SC, supra at para. 39. The letter explains that, (1) the Program is cultural, not faith-based, whereas Loyola’s proposal is based on the Catholic faith and its main goal is the transmission of Catholic beliefs and convictions; (2) the Program is intended to lead students to reflect on the common good, and on ethical issues, whereas the proposal appears to promote the adoption of the Jesuit perspective of Christian service; (3) in the religious culture component of the Program, religious traditions are taught individually and without comparison, whereas the proposal teaches other religions in relation to Catholicism; (4) in the ethics component of the Program, students are not offered moral education, whereas the proposal focuses on the teaching of moral reference points laid down by the Catholic Church; (5) in the proposal, the teacher seems to have to teach the foundations of the religion and universe of Jesuit Catholic beliefs, whereas in the Program, the teacher’s foremost responsibility is to assist and guide the students in their reflections; and (6) the proposal does not provide for the development of competence in the dialogue component.
260 See Loyola SC, supra at para. 39 (“we remind you that any private educational institution can implement a denominational local program of studies of up to four units, in addition to the [Program]”).
261 The parties tendered evidence concerning the school’s character (on the school’s side) and how the Minister’s decision was made (on the government’s side), as well as expert evidence concerning the nature of the school’s religious interests (on the school’s side) as well as the nature of the Program (on the government’s side).
262 In addition to the substantive issues discussed in the text, the school originally challenged the decision on administrative law grounds as well as under the Quebec Charter, supra. In the SCC, the case was focused on the Canadian Charter, supra.
263 Loyola, supra at para. 31 (“Loyola took no position on the perspective from which it would seek to teach the dialogue component, which would be integrated with the other two components of its proposed alternative program”). On the ambiguities surrounding this issue, see note 326, infra and corresponding text.
264 Ibid at para. 29. Compare the claims advanced (and rejected) in SL, summarized in note 237, supra. According to the pleadings, Loyola’s allegations include that the Program “represents and inculcates a relativistic philosophy, which, to employ for convenience a label used by sorne academics, may be referred to as ‘normative pluralism’, and a pedagogy that corresponds to that philosophy. ¶ Far from being a neutral philosophical position, normative pluralism is as infused with philosophical and ideological content as any other religion or philosophy. It is part of a well-established school of relativistic thought, being represented by academics and thinkers. Its fundamental tenets entail the denial of any claims to truth beyond the subjective experience of each individual and the reduction of all religious beliefs and traditions to the level of purely human manifestations, stripping them of all transcendent
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majority focuses instead on the effects of the Program’s neutrality requirement on those wishing
to offer and receive a Catholic education.265 This is also how the application judge frames the
case, based on the evidence of the school’s expert.266 According to school’s expert, “God must
hold a central place ... in the education to be dispensed by a Catholic school”, and Catholic
“[e]ducation runs counter to that rule if it must set aside God as the ultimate end”.267 On this
account, the problem with the Program is that it invokes objectives that are consistent with the
teachings of the Catholic Church (i.e., the recognition of others and the pursuit of the common
good) but excludes “the reference to the ultimate end—God”, by constraining the school’s
teachers in the profession of faith.268 The degree to which the majority relies on this factual
record is not clear.269 The majority summarizes the reasons of the courts below in just a sentence
or two each.270
dimensions. Normative pluralism effectively trivializes and implicitly negates religious belief and experience …. [The Program], both in its substance and methodology, is by no means a neutral presentation of various religious traditions, but is replete with normative pluralism as its fundamental ideological undercurrent. ¶ The world view espoused by normative pluralism is incompatible with [Loyola’s] Catholic character. ¶ Moreover, while the [Program] does not prohibit private Catholic schools such as Loyola from providing supplementary religious education in addition to the mandatory [Program] courses, such a course of action is unacceptable in that it would amount to inculcating in students two incompatible world views.” See Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (Re-Amended Motion to Institute Proceedings dated June 11, 2009, Appellant’s Record, vol. II, 81-92 at paras. 28-35) [Appellant’s Pleadings].
265 See Loyola, supra at 61-67; compare at para. 29.
266 Indeed, the judge sets aside the school’s claims involving the Program’s content (i.e., its alleged “moral relativism” and “normative pluralism”) and focuses on the impact of the Program’s neutrality requirement. See Loyola SC, supra at paras. 263-290.
267 Ibid at paras. 274 and 282.
268 Ibid at para. 277.
269 Compare Fox-Decent & Pless, supra note 215 at 518. As discussed in note 312, infra, they suggest that the dissenting justices consider the complete record whereas the majority does not, insofar as the dissenting justices are ostensibly applying a Charter review on a full evidentiary record, whereas the majority is ostensibly applying an administrative law reasonableness review, which would exclude evidence that was not before the decision-maker.
270 Loyola, supra at paras. 29-30. On the merits, the application judge treats the cultural/denominational distinction that the Minister purports to uphold as irrelevant to her exercise of discretion, and in any event treats the proposed alternative course as equivalent to the Program (Loyola SC, supra at paras. 176-177, 182). Writing for the Court of Appeal, Fournier JA accepts the application judge’s formulation of the school’s objection to teaching the Program (Loyola CA, supra at para. 170), but frames the government’s policy in more capacious terms, acknowledging that the Program “tries to instill in students such principles and values as respect for others and democracy and teach
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3.4.2 Affirming the Doré Test
In describing the Doré “framework” for judicial review, the majority broadens its application and
deepens its ambiguities.271 To begin with, the majority abandons the focus on adjudicated
administrative decisions from Multani and Doré; the majority now says that the Doré framework
“applies to discretionary administrative decisions that engage the Charter” generally.272
Broadening the application of Doré in this way obscures the original reasons for the Court’s
insistence that Charter values rather than Charter rights should apply in this context. As
described below, so does the majority’s handling of the standard, criterion, and form of review.
The Doré framework coalesces into something like the following. The standard of review is
reasonableness.273 The criterion of review is ambiguous. In some passages, it sounds like Charter
justification, because the majority refers to Charter rights, guarantees, and protections.274 In
other passages, it sounds like Charter values justification. The majority distinguishes what it is
them about building a common popular culture that takes into account diversity and how to better live together in society” (ibid at para 12). He decides that the school has not demonstrated that its rights have been infringed on an objective basis, i.e., that the infringement is non-trivial (ibid at para. 168). Notably, he relies on the SCC’s characterization of the Program in SL in support of this conclusion; in any event, he decides that “[t]he infringement is trivial because [the Program] is only one class among many”, and “does not require teachers to refute the precepts of the Catholic religion, but only to abstain from expressing their opinions or convictions” in the context of a single class (ibid at para. 174). He also decides that, if there is an infringement, it is justified. He applies the Doré test. He emphasizes that, “the Minister reminds Loyola that it has the right to establish the content for four teaching credits as it wishes”, and that “[t]here is nothing in the Minister's decision that constitutes an obstacle to teaching the Catholic faith and doctrine in such a course” (ibid at para. 182) He ultimately concludes that, “[t]he Minister's decision is the result of a proportionate balancing act of the right to freedom of religion and the statutory objectives and, at the very least, taking into account that even on this question the standard of review is that of reasonableness, it is one of the possible outcomes” (ibid at para. 183).
271 See Loyola, supra at paras. 3-4, 35-42.
272 Ibid. As noted, the decision in this case involved an exchange of letters between the school and the Minister.
273 Ibid at para. 32 (this is implicit in the framing of the Doré test as a reasonableness test).
274 See e.g. ibid at para. 4 (“Under Doré, where a discretionary administrative decision engages the protections enumerated in the Charter — both the Charter’s guarantees and the foundational values they reflect — the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue.”); para. 35 (“Doré requires administrative decision-makers to proportionately balance the Charter protections —values and rights — at stake in their decisions with the relevant statutory mandate.”); and para. 38 (“The Charter enumerates a series of guarantees that can only be limited if the government can justify those limitations as proportionate. As a result, in order to ensure that decisions accord with the fundamental values of the Charter in contexts where Charter rights are engaged, reasonableness requires proportionality.”).
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doing from a “literal” section 1 approach, implicating the question of whether the Charter
applies in this context,275 and the majority mentions Charter values and endorses academic
commentary that endorses the concept of Charter values.276
The proposed form of review deepens these ambiguities. The majority calls the Doré test “a
robust proportionality analysis”, that is in “analytical harmony” with the proportionality test, but
at the same time suggests that it is “consistent with administrative law principles” and styles it as
a reasonableness test, which is another way of saying that it is an administrative law test.277 The
275 Ibid at para. 3.
276 See e.g. ibid at para. 36. In this passage, the majority explains that, “[i]n the Doré analysis, Charter values — those values that underpin each right and give it meaning — help determine the extent of any given infringement in the particular administrative context and, correlatively, when limitations on that right are proportionate in light of the applicable statutory objectives”. The majority cites Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para. 88 [Hutterian Brethren] and Lorne Sossin & Mark Friedman, “Charter Values and Administrative Justice” (2014), 67 S.C.L.R. (2d) 391 at 403-4. The passage from Hutterian Brethren invokes Charter values in a very general way (referring to the “Charter values” of “liberty, human dignity, equality, autonomy, and the enhancement of democracy”). The paper by Sossin and Friedman is more comprehensive in its discussion of the concept of Charter values and how it has been used in the cases. The challenge of using this paper as an interpretative aid for the decision, at least for present purposes, is that the authors do not directly address the arguments set out in Multani and Doré for deciding that the Charter does not apply to administrative decisions, and for preferring the Doré test for the judicial review of administrative decisions involving the exercise of discretion. On the contrary, they focus on adjudicated administrative decisions (ibid at 406), and what Charter values means for decision-makers (for example, helping them choose among alternative interpretations of a statute) (ibid at 424ff). They also undermine the Court’s practical reasons for adopting the Doré test when they describe the lack of methodological clarity in Doré, the “inherently subjective aspect of the balancing exercise envisioned in Doré”, and the need for adjudicative bodies to clarify how they are going to use the concept of Charter values, which they suggest will involve a period of training and the publication of manuals and guides for parties (ibid at 423, 428). It is not clear if all of this is what the Court has in mind when it promotes the Doré framework in the interests of predictability and consistency. Sossin and Friedman also appear to suggest that the Charter still applies to administrative decision-making, although (on my reading of the paper) how/when this should happen is somewhat ambiguous (e.g., “[a]rguably, a matter should only proceed to a hearing based on a Charter right where a Charter values framework is not able to resolve the challenge at issue” at 406); the authors also suggest that, “what is at stake in the application of Charter values in administrative justice is an administrative law balancing, not a specific invalidation of any government action” (ibid at 413) and that, “in the context of administrative justice … the Charter cannot negate or ‘trump’ legislative choices, but rather can be used to inform, refine, focus and interpret those choices” (ibid at 422). Gerald Heckman makes a similar observation about the majority’s reference to this paper in “Developments in Administrative Law: The 2014-2015 Term” (2016), 72 S.C.L.R. (2d) 1 at paras. 111-113 (“It is unclear whether Abella J. intended to endorse the broad meaning of Charter values favoured by Sossin & Friedman”).
277 Loyola, supra at paras. 3 (emphasis in original), 32, 37-40.
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majority also appears to follow Doré in framing the test in two different ways, as a matter of
balancing (or “proportionate balancing”) as well as minimal impairment.278
All of this makes for an ungainly legal test in Loyola. That is because the statutory objectives in
this case, read on their face, are extremely broad (i.e., ensuring consistency in education; testing
proposed curricula for equivalence with mandatory programs), but the policy to which they are
joined is very specific (i.e., the Program, with its combination of objectives and means, including
the neutrality requirement). If we adopt an integrated view of the statutory framework (i.e.,
integrating the statutory framework with the policy that is being applied), then all of this has
radical implications for religious freedom in this case. Just focusing on the issue of neutrality, the
integrated view would require the Program to be taught, from a neutral perspective, in all
schools, with limited exceptions (i.e., humanitarian/harm-based exceptions for individual
students). But the majority eschews the integrated view. Instead, as discussed below, it requires a
balance to be struck between the statutory objectives (defined broadly)279 and the school’s
religious freedom (defined narrowly),280 and without regard to the other public interests served
by the Program and its design. I will suggest that, by requiring this balance to be struck as a
278 Ibid at paras. 3, 4, 35-42. To be clear, in some passages, the majority frames the Doré test in a way that combines considerations of balancing (or “proportionate balancing”) and minimal impairment. See ibid at para. 4 (“the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue.”); see further, ibid at paras. 68 and 79. In other passages, the emphasis appears to be placed on balancing. See ibid at para. 35 (“Doré requires administrative decision-makers to proportionately balance the Charter protections —values and rights — at stake in their decisions with the relevant statutory mandate”) and para. 37 (“On judicial review, the task of the reviewing court applying the Doré framework is to assess whether the decision is reasonable because it reflects a proportionate balance between the Charter protections at stake and the relevant statutory mandate”). In still other passages, the emphasis is placed on minimal impairment. Indeed, there are passages that acknowledge the possibility that rights can be justifiably limited. See ibid at para. 38 (“The Charter enumerates a series of guarantees that can only be limited if the government can justify those limitations as proportionate”) and para. 39 (“A proportionate balancing is one that gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate”). Indeed, the Court appears to acknowledge that it may not always be possible to find a less impairing alternative means of pursuing the state’s objective in a given case, although it does not explain what happens when this is the case. See ibid at para. 41 (“As under the minimal impairment stage of the Oakes analysis, under Doré there may be more than one proportionate outcome that protects Charter values as fully as possible in light of the applicable statutory objectives and mandate”).
279 That is, at the level of the Minister’s and the Program’s broadest objectives, without regard to the Program’s neutrality requirement.
280 That is, solely by reference to the school’s interest in teaching the Program from a religious perspective.
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matter of the Minister’s discretion, rather than looking at the statutory-policy framework as a
whole, the majority bends that framework out of shape.
3.4.3 Applying the Doré Test
3.4.3.1 Teaching Catholicism
3.4.3.1.1 The Charter Values at Play
The majority accepts that the Minister’s refusal to grant an exemption from the Program
infringed “the religious freedom of the members of the Loyola community who seek to offer and
wish to receive a Catholic education.”281 The suggestion is that the state is telling a religious
community how to teach its own religion, and the majority is satisfied that, “[u]ltimately,
measures which undermine the character of lawful religious institutions and disrupt the vitality
of religious communities represent a profound interference with religious freedom.”282
What about the other “values underlying the grant of [the Minister’s] discretion”?283 I will
suggest that the majority handles the broader public purposes involved in this case (i.e., the
state’s interests in developing the Program) as a matter of context, but not as a matter of
constitutional balancing.284 Thus the majority acknowledges that Quebec has a “legitimate
281 The Court is satisfied that the school has standing as the subject of an administrative decision, but does not rule on the question of whether the school can bring a claim based on the freedom of religion in its own right; instead, the Court focuses on “the religious freedom of the members of the Loyola community who seek to offer and wish to receive a Catholic education.” See Loyola, supra at paras. 6, 32, 34, 58-67; see esp. at paras. 33-34. I will not comment on this aspect of the case, except to note that, because Loyola is a private school seeking public accreditation of its educational programs (see ibid at paras. 52-53) that is also the locus of a religious community, its dual status might also put into issue whether the statutory framework (which does not provide a humanitarian/harm-based exemption for schools, as it does for students) is adequate to secure its distinct combination of interests (or, conversely, whether the state is justified in imposing limitations on them).
282 Ibid at paras. 61-67, esp. at para. 61 (distinguishing SL on the basis that this case involves communal interests). The Court does not present these findings in the framework of the subjective/objective test that is typically conducted in religious freedom cases (see Part 3.2.2, above).
283 Ibid at para. 34; Doré, supra at para. 24.
284 Loyola, supra at paras. 45-48. Contra Howard Kislowicz, “Developments in Religious Freedom: What Saguenay and Loyola Tell Us -- and Don’t -- About the Trinity Western University Law School Cases” (2016), 72 S.C.L.R. (2d) 75 at paras. 4, 29-37 (suggesting that in this passage the majority identifies “three ‘core national values’ that can justify limitations of religious freedom”, namely, equality, human rights and democracy).
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interest” in promoting pluralism,285 that ‘“[a] multicultural multireligious society can only work
... if people of all groups understand and tolerate each other”,286 and that the state has a
legitimate interest in promoting these values (and skills) through education.287 If we take the
Doré test seriously, then all of these are also “values underlying the grant of discretion”,288 that
should be integrated into the balancing exercise along with the school’s religious freedom.
(Similarly, if we apply the proportionality test, these interests would help to define the Minister’s
pressing and substantial objectives, and whether the statutory framework, or the Minister’s
decision, is proportional.) But that is not what happens. The majority does not consider these
values when it takes up the school’s interests in teaching Catholicism from a Catholic
perspective. Instead, the majority defines the statutory objectives and the Program objectives so
broadly as to obscure the neutrality requirement as a factor to be considered in the equivalence
test.289
3.4.3.1.2 The Balancing Test
I have suggested that when the majority applies the Doré test in this case, it bends the statutory
framework out of shape. That is because a balance may struck within the statutory framework
only if the majority defines the statutory mandate so broadly as to set aside the neutrality
requirement of the Program as a factor to be considered in the equivalence test. The possibility
285 Loyola, supra at para. 47, citing Jürgen Habermas, “Religion in the Public Sphere” (2006) 14 Eur J of Philos 1 at 5 (in the words of the majority, “shared values — equality, human rights and democracy — are values the state always has a legitimate interest in promoting and protecting. They enhance the conditions for integration and points of civic solidarity by helping connect us despite our differences ... This is what makes pluralism work.”).
286 Loyola, supra at para. 47, quoting Adler v. Ontario [1996] 3 S.C.R. 609 at para. 212, McLachlin J (as she then was), dissenting. The majority explains that, “[r]eligious freedom must ... be understood in the context of a secular, multicultural and democratic society with a strong interest in protecting dignity and diversity, promoting equality, and ensuring the vitality of a common belief in human rights.”
287 Loyola, supra at para. 48 (“The state, therefore, has a legitimate interest in ensuring that students in all schools are capable, as adults, of conducting themselves with openness and respect as they confront cultural and religious differences. A pluralist, multicultural democracy depends on the capacity of its citizens ‘to engage in thoughtful and inclusive forms of deliberation amidst, and enriched by,’ different religious worldviews and practices…”, citing Benjamin L. Berger, “Religious Diversity, Education, and the ‘Crisis’ in State Neutrality” (2014) 29 CJLS 103 at 115).
288 Loyola, supra at para. 34; Doré, supra at para. 24.
289 See Loyola, supra at paras. 50-56, discussed in detail below.
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that the framework itself imposes the constraint on the school’s religious freedom is not
considered.
Thus the majority decides that the reasonableness test in this case involves balancing (or
‘proportionately balancing’) the Minister’s statutory mandate (framed broadly) with the religious
freedom of the members of the Loyola community (framed narrowly).290 To begin with, the
majority says that, “[t]he reasonableness of the Minister’s decision depends on whether it
reflected a proportionate balance between [(a)] the statutory mandate to grant exemptions only
when a proposed alternative program is ‘equivalent’ to the prescribed curriculum, based on the
ERC Program’s goals of promoting tolerance and respect for difference, and [(b)] the religious
freedom of the members of the Loyola community who seek to offer and wish to receive a
Catholic education.”291 The majority also defines the Minister’s statutory mandate (e.g.,
“ensuring that basic educational standards are met”),292 broadly enough that it necessarily
encompasses accommodations for religious education, given that these are also part of the larger
statutory scheme (because “a reasonable interpretation of the process for granting exemptions ...
would leave at least some room for the religious character of [private religious] schools”).293
Finally, to effect a balance between the statutory mandate (so defined) and the religious freedom
claim, the majority defines the Program objectives without regard to the neutrality requirement.
Instead, in this context,294 the majority focuses exclusively on what it calls the Program’s “two
key objectives”, “the recognition of others and the pursuit of the common good”.295 Crucially,
290 That is, the school’s interests are defined without regard to its interests in a public policy that promotes respect for difference and religious practice generally.
291 Loyola, supra at para. 32. Further, the Court’s task is “assessing the Minister’s decision in order to determine whether it proportionately balanced religious freedom with the statutory objectives of the ERC Program”. Ibid at para. 49; see further ibid at para. 56.
292 See ibid at paras. 51 and para. 53.
293 Ibid at para. 54 (“The regulation providing for such exemptions would otherwise operate to prevent what the Act respecting private education itself allows — a private school being denominational.”)
294 As noted below, the Court will define the relationship of the Program objectives and the neutrality requirement differently when it take up the aspect of the case involving teaching the ethics and culture of other religions.
295 Loyola, supra at para. 55.
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the majority reasons that, “[u]sing the program’s objectives as the marker for equivalence leaves
the necessary flexibility for the possibility of acceptable differences between an alternative
program and the ERC Program, including differences that can accommodate religious
freedom.”296 The majority concludes that, “[a]s long as the alternative program substantially
realizes the objectives of the [Program]” (defined at this level of generality), “it should be
considered equivalent.”297
Having defined the Minister’s objectives in these broad terms, the majority faults the Minister
for supposing that Loyola could not achieve them. The criticism is startling. When the majority
initially describes the Program, it acknowledges that its orientation “is strictly secular and
cultural”,298 and when the majority takes up the aspect of the case dealing with teaching of the
ethics and culture of other religions, it describes the neutrality requirement of the Program as
“essential to achieving its objectives”.299 By contrast with the goals of the Program, the majority
acknowledges that the “main goal” of Loyola’s proposed alternative course is “the ‘transmission
of Catholic beliefs and convictions’”.300 Nonetheless, when the majority considers the aspect of
the case involving the teaching of Catholicism, it faults the Minister (in highly pejorative
language) for what it calls her “assumptions” that “a confessional program cannot achieve the
objectives of the [Program]” (as the majority has now defined them).301 The majority actually
says that the Minister “gives no weight to the values of religious freedom engaged by the
decision”, and conducts “no balancing of freedom of religion in relation to the statutory
296 Ibid at para. 56.
297 Ibid. The Court argues that, “Given the highly flexible nature of the ERC Program and its heavy emphasis on these two objectives, as well as the context of the regulatory scheme as a whole, it is unreasonable to interpret equivalence as requiring a strict adherence to specific course content, rather than in terms of the ERC’s program objectives generally.” In this context, the Court seems to equate the neutrality requirement to “specific course content”. Later, in relation to the teaching of the ethics and culture of other religions, the Court will seem to treat the neutrality requirement as something more fundamental about the Program.
298 Ibid at para. 19.
299 Ibid at para. 80.
300 Ibid at para. 57.
301 Ibid at para. 79 (emphasis added). See further ibid at paras. 5, 68-69.
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objectives.”302 For the majority, “[t]he result is a disproportionate outcome that does not protect
Charter values as fully as possible in light of [the] statutory objectives.”303
This conclusion raises at least three concerns. First, it omits the fact that the Minister encouraged
the school to consider teaching a course on Catholicism in addition to the Program.304 Second, it
omits consideration of the wider religious interests at stake in the Minister’s decision, in terms of
promoting pluralism, multiculturalism, and mutual toleration through education (again, interests
that the majority acknowledges as a matter of context, but not as a matter of balancing).305
Indeed, contrary to the majority’s conclusion, we might decide that the Minister’s decision was
in fact animated by a commitment to the freedom of religion, but understood from a communal
perspective (which the school also partakes of). Finally, the reader may find it difficult to
reconcile the majority’s conclusions on this point with its reasons requiring the school to teach
the culture and ethics of other religions from a neutral perspective, noted below.
From the standpoint of public law adjudication, the telling move in this line of reasoning is the
Court’s suggestion that, “a reasonable interpretation of the process for granting exemptions from
the mandatory curriculum would leave at least some room for the religious character of those
302 Ibid at para. 68 (emphasis added).
303 Ibid.
304 In Loyola’s pleadings and written argument in the SCC, the school acknowledges the Minister’s interest in the school’s right to teach a course on Catholicism, although its position on this question appears to change in the course of the proceedings. In its pleadings, the school frames this issue by reference to the contents of the Program (in keeping with the rest of the claim). See Appellant’s Pleadings, supra note 264 at paras. 28-35 (alleging that teaching parallel courses “would amount to inculcating in students two incompatible world views”). Before the SCC, the issue is framed less decisively. See Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (Appellant’s factum at para. 127) [Appellant’s factum] (“[t]he [Minister’s] decision makes reference to the fact that Loyola has the right to teach four so-called ‘units’ of catechetical Catholic teaching. The [province] suggests that Loyola can defer its Catholic perspective to the small number of hours allotted to that. Here, it is important to explain that the catechetical component covers only such questions as Catholic dogma, the sacraments, and so forth. It is not a substitute for Catholic ethics and religion”). It may also be noted that, despite Loyola’s acknowledgment of the Minister’s interest in its right to teach a course on Catholicism in addition to the Program, in its written argument in the SCC the school repeatedly asserts that the Minister did not consider its religious freedom in reaching her decision. The assertion appears to be based on the out-of-court examinations of the civil servants who were involved in the review of the school’s proposal, but the assertion is inconsistent with the Minister’s letters to the school. See ibid at paras. 3, 30-32. In any event, the province denies the assertion that the Minister did not consider the school’s religious freedom in making her decision. See Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (Respondent’s factum at para. 96).
305 Loyola, supra at paras. 47-48.
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schools”, because otherwise “[t]he regulation providing for such exemptions would otherwise
operate to prevent what the [law] itself allows — a private school being denominational.”306
Does it really make sense to read-in this flexibility to the equivalence test, and consider what is
equivalent to the Program without regard to the neutrality requirement? All of this suggests that
the constitutional constraint may lie in the statutory framework, i.e., the combination of the
Program’s neutrality requirement and the statute’s provision of exemptions to “equivalent”
programs only. The majority does not consider this possibility. It focuses on “balancing” instead.
3.4.3.2 Teaching the Ethics and Culture of Other Religions
The majority reaches a very different conclusion with regard to the rest of the Program. Here, the
majority takes the same approach as the Court in SL, affirming that, “in a multicultural society, it
is not a breach of anyone’s freedom of religion to be required to learn (or teach) about the
doctrines and ethics of other world religions in a neutral and respectful way”.307 Indeed, in this
context, these are objectives of “immense public importance”, and “[t]hese features” of the
Program are “essential to achieving its objectives”.308 Satisfying the neutrality requirement may
be “a delicate exercise” for Loyola, but that “does not mean the state should be required to throw
up its hands and abandon its objectives”.309
As in SL, the majority appears to be applying a balancing test without doing it explicitly.310 In
either event, the reader may find it hard to reconcile this discussion with the Court’s
characterization of the objectives and impact of the Program (and the neutrality requirement)
with regard to the teaching of Catholicism.311
306 Ibid at para. 54.
307 Ibid at paras. 71-75. Indeed, the Court says that in a religious school, “it is arguably even more important that [students] learn, in as objective a way as possible, about other belief systems and the reasons underlying those beliefs”. Ibid at para. 72.
308 Ibid at paras. 71-75, 80.
309 Ibid at paras. 73-74. The Court is ultimately satisfied that, “teaching about the ethics of other religions is largely a factual exercise” and “need not be a clash of values.” Ibid at para. 78.
310 See note 249, supra and corresponding text.
311 The Court says that it can distinguish the two situations in Loyola, supra at para. 80.
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3.4.4 The Dissenting Reasons
In dissent, McLachlin CJ and Moldaver J reopen the divide that was closed in Doré. The
standard of review is ambiguous,312 but the criterion of review is Charter justification, and the
form of review is a simplified version of the proportionality test, focusing on minimal
impairment.313 By adopting this approach, the dissenting justices appear to be suggesting a way
out of the conceptual incoherence of denying that the Charter applies in this context: by applying
the Charter, but using a simplified approach to the proportionality test.314 Accordingly, they
suggest that the requirements set out in section 1 of the Charter “may be expressed in different
ways in different contexts, but the basic constitutional requirement remains the same”;315 and in
this case, “[h]owever one describes the precise analytic approach taken, the essential question is
this: did the Minister’s decision limit Loyola’s right to freedom of religion proportionately —
that is, no more than was reasonably necessary?”316
312 Fox-Decent and Pless suggest that they are applying a correctness standard because they review the evidence that was before the application judge (see e.g. ibid at paras. 118-119, 152, McLachlin CJ and Moldaver J, dissenting). The authors explain that, “[o]n an ordinary application for judicial review, further evidence, much less testimony, is not admissible. Judicial review on a reasonableness standard is based on the record that was before the decision-maker. The evidence was admissible in this case because Loyola was heard by the Superior Court before Doré was rendered and so was heard on the assumption that Oakes applied, and the standard of review was correctness. McLachlin CJ and Moldaver J’s reliance on this evidence after Doré suggests that they are reviewing the decision on a correctness standard.” See Fox-Decent & Pless, supra note 215 at 517-518.
313 Loyola, supra at paras. 88, 113-114, 146, McLachlin CJ and Moldaver J, dissenting. Compare the simplified form of the proportionality test that LeBel J proposes for these purposes in Multani, supra at para. 155, LeBel J, concurring (“it must be asked whether the analytical approach established in Oakes need be followed in its entirety. In the case of an individualized decision made pursuant to statutory authority, it may be possible to dispense with certain steps of the analysis. The existence of a statutory authority that is not itself challenged makes it pointless to review the objectives of the act. 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...”).
314 Compare LSBC v. TWU, supra note 15 at paras. 111-119, McLachlin CJ, concurring.
315 Loyola, supra at para. 113, McLachlin CJ and Moldaver J, dissenting.
316 Ibid at para. 114, McLachlin CJ and Moldaver J, dissenting; see also at para. 146, McLachlin CJ and Moldaver J, dissenting (“the core issue on this appeal is whether the Minister’s insistence on a purely secular program of study to qualify for an exemption limited Loyola’s right to religious freedom no more than reasonably necessary to achieve the ERC Program’s goals. The government bears the burden of showing this. If it fails to do so, the Minister’s decision is unconstitutional and must be set aside.”).
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Similarly to the majority, the dissenting justices decide that the statutory framework is flexible
enough to accommodate the school’s religious freedom,317 but they delve more deeply into the
evidence about the proposed alternative course (considering the record before the application
judge) before deciding that it was equivalent to the Program.318 They present a more nuanced
picture of the course than the majority does, suggesting that, “purely denominational instruction
designed primarily to indoctrinate students to the correctness of certain religious precepts would
not achieve the objectives of the [Program]; however, a balanced curriculum, taught from a
religious perspective but with all viewpoints presented and respected could, in our view, serve as
an equivalent”.319
Having suggested that the school can make a respectful presentation of different viewpoints, the
dissenting justices reject the suggestion that it should also be required to teach the ethics and
culture of other religions from a neutral perspective. Requiring the school to treat “all viewpoints
... as equally credible or worthy of belief would require a degree of disconnect from, and
suppression of, Loyola’s own religious perspective that is incompatible with freedom of
religion”.320
317 Ibid at para. 108-112, McLachlin CJ and Moldaver J, dissenting.
318 Ibid at paras. 127-129 and 146-151, McLachlin CJ and Moldaver J, dissenting (“At its most general level, the program takes the following form: (1) … Loyola will teach Catholicism from the Catholic perspective, but will teach other religions objectively, respectfully and with reference to religious precepts as understood by those other faiths themselves; (2) regarding the ethics competency, Loyola will emphasize the Catholic point of view on ethical questions, but will ensure all ethical points are presented on any given issue, and will welcome disagreement from students on Catholic moral teachings; and (3) regarding the dialogue competency, Loyola will encourage students to think critically and engage with their teachers and with each other in exploring the topics covered in the program …. There is nothing to suggest Loyola’s proposal is in any way ill suited to achieve the two key objectives of the ERC Program: recognition of others and the pursuit of the common good. Nor does it fail to address the competencies of understanding religion, reflecting on ethical questions, and engaging in dialogue.”).
319 Ibid at para. 148, McLachlin CJ and Moldaver J, dissenting.
320 Ibid at para. 162, McLachlin CJ and Moldaver J, dissenting.
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3.5 Analysis: Choosing a Form of Review for Public Law Adjudication
Loyola has not received very much academic attention with regard to its application of the Doré
framework,321 although the split between the majority and the dissenting justices has been
noted.322 Some writers emphasize the significance of the division, the ambiguities that remain to
be resolved concerning the scope and application of Charter values in this context, and the
lingering question of whether Charter values can be expected to protect Charter rights.323 Other
writers downplay the significance of the division, suggesting that the majority and the dissenting
justices are basically applying the same legal test.324
321 But see Tom Hickman, “Adjudicating Constitutional Rights in Administrative Law” (2016) 66 UTLJ 121 at 169 (expressing befuddlement at the continued simplification of the Oakes test in this context, because the Oakes test would seem to be suitable to it). More broadly, the case has received considerable attention for its discussion of the communal and corporate dimensions of religious freedom. See e.g. Victor M. Muniz-Fraticelli & Lawrence David, “Religious Institutionalism in a Canadian Context” (2015) 52 Osgoode Hall LJ 1049 (placing the decision in this context). For an overall assessment of the case, see Howard Kislowicz, “Loyola High School v. Attorney General of Quebec: On Non-triviality and the Charter Value of Religious Freedom” (2015) 71 SCLR (2d) 331 [Kislowicz, “Loyola High School”].
322 See e.g. Fox-Decent & Pless, supra at 517-518 (suggesting that the difference in approaches taken “raises questions about the strength of the Supreme Court’s commitment to the Dore approach”).
323 See Lorne Sossin, “Constitutional Cases 2015: An Overview” (2016) 76 SCLR (2d) 1 at paras. 35, 39, 45-46. Sossin cautions that, “[g]iven the similarity of outcome, there is a temptation to see the methodological divergence as academic. It is not.” He explains that, “Charter values represent a potentially substantial expansion of the reach of the Charter” (because of how widely they would apply) and that “the Doré framework envisions deference to administrative decision-makers in ways a Charter claim would not”. In keeping with his past work on Charter values (see note 276, supra), Sossin sees promise in this approach, insofar as it suggests that “our understanding [of] the Charter and its relevance could be enhanced by the expertise of discretionary decision-makers across diverse policy contexts”, although it is not clear why we need to endorse the concept of Charter values in order for this to happen. I have suggested that we can accommodate the expertise of discretionary decision-makers by making allowances for a range of forms of analysis at first instance and by adopting a flexible standard of review, Charter justification as the criterion of review, and the proportionality test as the form of review for judicial review. See also Heckman, supra note 276 at paras. 109-114 (suggesting that the difference in approaches indicates that, “the familiar fault lines remain”; that “[i]t is unclear whether Abella J. intended to endorse the broad meaning of Charter values favoured by Sossin & Friedman” [see note 276, supra]; and that, “[u]nfortunately, Loyola does not provide many new insights on the question of whether the Doré approach … is as protective of Charter rights as the Oakes analysis”).
324 See e.g., Paul Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” (2016) 62:2 McGill LJ 527 at paras. 61-64 (“[a]nalytically speaking, the conclusions of the majority and the minority were almost identical”) and Howard Kislowicz, “Loyola High School”, supra note 321 at paras. 28-32 (“the disagreement between the majority and minority turned out not to stem from any methodological difference, but rather from a divergence on what proportionality required in the circumstances”).
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From a normative standpoint, the division is significant. The majority does not clearly endorse or
abandon the reasons given for originally adopting the Doré framework, but the references to
Charter values in the reasons (and the contrasting references to Charter rights and limitations in
the dissent) suggests that the Court is still committed to these ideas, in some form. The ambiguity
is untenable. The reason for talking about Charter values in this context is that the Charter does
not apply; the reason for talking about Charter rights is that it does.
From a formal standpoint, the division is also significant. Loyola presents a vivid example of
how the application of the Doré test (and simplified forms of the proportionality test), can
obscure the interests at stake in public law adjudication. By the same measure, SL and Loyola
both suggests how applying the proportionality test might help us do a better job of illuminating
these interests and resolving the tensions among them in a coherent way, while signaling
precisely how the state’s activity is placing constraints on Charter rights. I will consider the
signaling issue first, and close with the question of coherence.
3.5.1 The Signaling Function
In Loyola, all of the justices draw attention to the fundamental conflict that arises between the
neutrality requirement of the Program and the school’s character as a religious institution. But
rather than resolving this tension at the level of policy -- i.e., by adopting an integrated view of
the statutory framework, as it operates in this case in conjunction with the Program, and
considering whether it is constitutional -- the justices seek to resolve this case by reference to the
Minister’s discretion. For the majority, this happens through the focus on balancing, and the
effort to demonstrate that a balance between competing interests may be struck within the
statutory framework. For the dissenting justices, this happens through the focus on minimal
impairment, and the effort to demonstrate that a less impairing decision could be taken within the
statutory framework. Both sets of reasons require us to accept that the statutory objectives can be
achieved without reference to the Program’s neutrality requirement. In effect, both sets of
reasons strip that element of the Program away, for the purpose of effecting what the justices
characterize as a reasonable or proportionate exercise of discretion.
Accordingly, both sets of reasons illustrate the enduring relevance of the insights first expressed
in Slaight Communications: that an infringement of the Charter may be the result of a flawed
decision or a flawed statutory framework, and the Court should be attentive to both of these
82
possibilities. I have suggested that the proportionality test can play a crucial role in helping
reviewing courts determine which of these is the case, because of its signaling function. If the
Minister was pursuing a statutory objective that was considered to be inimical to the freedom of
religion, had no meaningful alternatives for achieving her statutory objective, and if her decision
was disproportionate in its effects, then we need to consider the statutory framework. These are
the lines of reasoning that applying the proportionality test helps bring to light.
3.5.2 The Coherence Function
I have suggested that public law adjudication has a distinctive character, when rights claimants
against the state partake of the public interests being promoted by the state (by virtue of being a
member of the public) and when the state partakes of the claimant’s interests (by virtue of its
attention to the claimant’s rights). As simple or simplistic as this may sound, in Loyola, the
application of the Doré framework obscures this dynamic in two ways: first, by looking for
Charter values on one side of the case only, not on both sides of the case, thereby obscuring the
public interests being promoted by the state, and how the claimant partakes of those interests;
and second, as a related matter, by framing the case as a matter of “balancing”, or “proportionate
balancing”, such that the policy goals being promoted by the state are framed in opposition to the
claimant’s interests (framed narrowly) even if they serve the claimant’s interests (framed
broadly). None of this is to suggest that the connection of these interests is going to be strong in
every case, but considering the connection (and whether it is strong or weak) is one of the tasks
of public law adjudication.
In this case, by insisting that the Minister should have “balanced” the claimant’s Charter rights
(defined narrowly, to the exclusion of its interests in a policy that promotes respect for
difference) with the statutory objective (defined broadly, and I would suggest artificially, to
accommodate this balancing exercise) we have lost the benefits of what I am describing as the
coherence function of the proportionality test. The proportionality test, with its threshold focus
on state objectives, could provide a framework for considering the interests that the Program
promotes (e.g., promoting understanding and respect for religious practice), and why these
interests might be compelling enough to justify imposing limitations on the claimant’s rights
(including because the claimant partakes of these interests) in the context of considering whether
the impact of the policies is proportional.
83
Indeed, from the standpoint of public law adjudication, what is perhaps most striking about both
of these decisions (SL and Loyola) is that the constitutional dimension of the state’s objectives
are not treated as a counterweight to the claims in either case. The Court did not acknowledge or
give effect to the Program as a public policy that promotes constitutional rights and interests (i.e.,
freedom of conscience and religion, freedom of expression, and respect for multiculturalism).
The issue was treated differently in SL and Loyola, but in neither case was it squarely addressed.
The approach taken in the two cases is all the more surprising because the same Program
objectives are acknowledged in both cases, but treated differently. In Loyola, the objectives are
treated as “contextual” factors for the first aspect of the claim (dealing with the teaching of
Catholicism), but without apparent effect. For the second aspect of the claim (dealing with other
religions) and in SL as a whole, the same objectives are treated as decisive; indeed, as important
enough, implicitly, to impose internal limits on the claimants’ freedom of religion. In both of the
cases, the Program objectives could and should have been associated with the public interest
(including the claimant’s interests more broadly) and duly considered as counterweights to the
claimant’s rights under section 1 of the Charter.325
In Loyola, the majority’s treatment of the dialogue component of the Program may also
demonstrate a failure to engage with the wider public interests at stake. The dialogue component
of the Program was treated as something of an afterthought. This may be telling. According to
the majority, Loyola’s proposed alternative course did not address the dialogue component, and
the school “took no position” on this question in argument.326 The majority does not consider the
325 In theory, the test the Court uses in Loyola could accommodate the consideration of the competing interests, but the Court does not apply the test in this way, and does not provide guidance for how this should be done.
326 Loyola, supra at para. 31 (“Loyola took no position on the perspective from which it would seek to teach the dialogue component, which would be integrated with the other two components of its proposed alternative program”). This is a curious formulation. Loyola, in its written submissions and oral argument, insisted that the dialogue component would be addressed through the Jesuit practice of disputation (as noted by the dissenting justices, who are satisfied that the dialogue requirement will be met in the school’s alternative course). See Appellant’s factum, supra note 304 at paras. 16 and 101-103; see also, Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (Oral Argument, Appellant). See esp. ibid at 12, line 2 to 13, line 25 (in the words of counsel for Loyola, “anyone who knows anything about the Jesuits knows that if there’s one thing that they do right it’s dialogue”) and at 28, line 21 - 29, line 15. See also, Loyola, supra at paras. 126-127, McLachlin CJ and Moldaver J, dissenting (“Loyola will encourage students to think critically and engage with their teachers and with each other in exploring the topics covered in the program”). Compare how the majority describes the dialogue component/competency of the Program in ibid at paras. 15, 18 (quoted in the text corresponding to this footnote).
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consequences of this, but (if we accept these statements on their face), the consequences are
striking.327 The dialogue component was intended to be integrated with each of the other
components in the Program, “to help students develop the skills to interact respectfully with
people of different beliefs in a diverse society, and to understand the impact of their behaviour
on the broader community”.328 Among other skills, the dialogue component was intended to help
students learn “strategies for developing, explaining or challenging a point of view”, as well as
“processes and patterns of thought that can undermine dialogue, such as stereotyping and
prejudice”.329
If the Program could be said to “inculcate in all students openness to diversity and respect for
others”,330 then the dialogue component would have to be seen as integral to it, and how Loyola
proposed to address it should have been treated as integral to the question of whether its
proposed course was equivalent to the Program (even with regard to its most general aims, “the
recognition of others and the pursuit of the common good”).331 I say this for the following
reasons. The majority acknowledges in this case that the state “has a legitimate interest in
ensuring that students in all schools are capable, as adults, of conducting themselves with
openness and respect as they confront cultural and religious differences”.332 Learning all of this
Query whether the school, the dissenting justices, and the majority are describing the same type of activity, for the reasons set out in the text.
327 My point is that the majority does not consider the consequences of what it characterizes as an omission or ambiguity in how the Program is going to be taught (as to whether the omission is meaningful, see note 326, supra and the discussion in the text).
328 Loyola, supra at para. 15 (emphasis added).
329 Ibid at para. 18.
330 Ibid at para. 11.
331 Ibid at para. 55 (emphasis added).
332 Ibid at paras. 47-48. Indeed, more broadly, the Court has repeatedly held that schools “have a duty to foster the respect of their students for the constitutional rights of all members of society”, and that “[l]earning respect for those rights is essential to our democratic society and should be part of the education of all students”; indeed, “[s]chools are meant to develop civic virtue and responsible citizenship”. See Multani, supra at para. 78, quoting R. v. M. (M.R.), [1998] 3 S.C.R. 393 at para. 3 and Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31 at para. 13.
85
involves learning about others, as well as learning about ourselves. It also involves learning
about how others see us. The point is to hear what it sounds like for someone else to describe
one’s own tradition, as a foundation for engaging in the kind of lifelong cognitive work that
living in a pluralist constitutional democracy demands.333 This is education rooted in the
demands of political rights. It is a commonplace that the separation of church and state protects
secular culture, but “no more so than it protects all religions”;334 likewise, this kind of education
can foster respect for and among believers and non-believers alike.
At least, this is a line of reasoning that might justify the Program on its own terms, and that
attention to the state’s objectives might bring into view. Applying the proportionality test can
help do this simply by requiring us to consider the state’s pressing and substantial objectives in a
more searching way.335 In any event, it is a striking feature of these cases that we see the state
pursuing these objectives, and yet they are not considered to be a compelling counterweight to
the claimant’s interests, indeed not considered to be a counterweight at all. This is not to suggest
that the state’s interests should carry the day, but simply that we can, indeed must, expect these
kinds of interests to be considered in cases like SL and Loyola.
333 This is not to suggest that a program of education designed to cultivate toleration should require children to reflect critically on their own beliefs, in the sense of second-guessing their truth content. Rather, the idea is to present the culture and ethics of different traditions (including one’s own) in a neutral way, so that adherents of each (or none) can understand how their own beliefs might be perceived from a neutral perspective, as a foundation for understanding the perspectives of others. My thanks to Mohammad Fadel for correspondence on this point.
334 John Rawls, “The Idea of Public Reason Revisited” (1997) 64:3 U. Chi. L. R. 765 at 795.
335 This is not to suggest that the only way to accomplish this is by applying the proportionality test. The Court of Appeal in this case applied the Doré test but upheld the Minister’s decision as reasonable in light of the Program’s broad objectives and the school’s being at liberty to teach a course on Catholicism outside of the context of the Program (see note 270, supra). And this is not to argue the merits, either. My point is simply that the Doré test provides very little guidance for how the work of balancing should be done, when there are compelling interests on both sides of these cases, and the parties partake of each other’s interests to a greater or lesser degree. My point is that the proportionality test provides a more transparent framework for working through these questions as a matter of course. By the same measure, applying what I have characterized as the substantive approach to the proportionality test (see note 65, supra) would also bring these interests to light, perhaps even more reliably, by requiring the court to articulate the constitutional rights, values, or interests that the state was promoting on its side of the case. (That having been said, we would apply the substantive approach to the proportionality test not for pragmatic reasons alone, but because we subscribe to the idea that the Charter establishes a common root for rights as well as limitations on rights. Defending this approach lies outside the scope of this paper.)
86
Why does all of this matter? I will hazard two reasons. The modest claim is that the Doré
framework fails to achieve its notional objectives: predictability and consistency.336 The test does
not provide guidance for future cases. How should a decision-maker decide what is reasonable or
proportional in the next of these types of cases? How should a party frame its case? How should
a legislature design a statutory framework that is sturdy enough to withstand this type of
balancing, when it intends to impose limitations on rights and thinks that it has a justifiable basis
for doing so? The Court’s reasons in SL and Loyola obfuscate rather than clarify the complex
interplay of interests in these cases, and the fundamental questions of when and on what basis
limitations on rights may be justifiable.
The more ambitious claim is that, as a matter of public law adjudication, we can ask for more.
We can ask for a richer conception of claimants’ interests, of the public interest, and of how the
state is trying to reconcile these interests in rights claims.
Conclusion Public law adjudication can surprise us by showing us the role that we play in a community,
when the ties that bind us have come under strain, and the causes for the strain. For this to
happen, however, the forms of reasoning that we use to work through the complexities of public
law cases should help us to identify the interests that we share with each other, how they relate to
each other (even when they are attenuated), and how the tensions among these interests might be
resolved in a coherent way.
The SCC has rightly acknowledged the role that administrative decision-makers have to play in
sustaining our constitutional aspirations (however we might define them), but it must be
acknowledged that the courts are uniquely placed to provide guidance and ensure consistency
and predictability in the adjudication of constitutional rights claims. Administrative settings for
legal decision vary widely, implicating constitutional interests in diverse ways. The variety of
these settings extends to their institutional capacities; in many of these contexts, the parties may
336 Deference is also a notional goal of the framework. I have suggested that this is a conceptual mistake (i.e., that we can pay deference to decision-makers in other ways, besides simplifying the criterion and form of review adopted for judicial review) but even if we take this aim seriously, it must be noted that the test has not appeared to facilitate any meaningful new forms of deference to administrative decision-makers in the cases under discussion.
87
be unrepresented and the decision-makers may lack legal training and support, presenting a
challenge for the formulation, let alone the adjudication, of rights claims.337 If administrative
decision-makers also differ in their approach to determining rights claims, and if the courts are
unable to provide meaningful guidance for how this may be done in a coherent way, then this
may fundamentally undermine the aspiration for including these decision-makers in the work of
constitutional interpretation in Canada.
The aspiration is that the constitution belongs to everyone and should be accessible to everyone,
however they may come into contact with the state. In the striking formulation of McLachlin CJ
(as she then was), “[t]he Charter is not some holy grail which only judicial initiates of the
superior courts may touch. The Charter belongs to the people.”338 Yet the premise for this idea is
equally striking. Because the Charter belongs to the people, “[a]ll law and law-makers that touch
the people must conform to it.” 339 The aspiration is to put the Charter in reach, regardless of
where we stand in relation to the state. The aspiration is illusory if the content of the Charter
changes based on where we stand.340
Perfect consistency in adjudication is also a mirage. But consistency is not: we can require the
same basic concepts and tensions to be considered when similar claims arise in different settings,
to ensure that the distinctive questions that are relevant to constitutional adjudication are
acknowledged and addressed in every case. The courts should apply the Charter in cases that
implicate the Charter, and when section 1 of the Charter is at issue, they should use the
proportionality test to resolve these kinds of cases.
337 For close attention to this point, see e.g. Sossin & Friedman, supra note 276.
338 Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at para. 70, McLachlin J (as she then was, dissenting).
339 Ibid.
340 Audrey Macklin makes a similar point, when she says that “[t]he quality of Charter protection ... should not depend on who makes the determination”. See Audrey Macklin, “Charter Right or Charter-Lite?: Administrative Discretion and the Charter” (2014) 67 SCLR 561 at 588.
88
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Other Materials
Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (Oral Argument)
---. (Factum of the Appellant)
---. (Appellant’s Record)
---. (Factum of the Respondent)
---. (Respondent’s Record)