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Charter - Administrative - Dore. Doré v. Barreau du Québec
In Doré v. Barreau du Québec (SCC, 2024) the Supreme Court of Canada addresses the JR SOR for Charter issues in an administrative context. I find the courts' treatment of this issue difficult, so I have left my reading notes (before each paragraph in square brackets) for (mostly my) later reference. The issue was the freedom of expression rights of a lawyer, here challenging an administrative disciplinary finding of the Quebec bar for an unwise letter written to a judge after a contentious case (this is addressed at para 59-71, not quoted here - but well worth reviewing for anyone involved in a similar case).
The result is to "balance() the Charter values with the statutory objectives", and merge the Charter s.1 Oakes test with 'reasonableness' as an aspect of proportionality [paras 45,55-58]:Analysis
[22] Mr. Doré’s argument rests on his assertion that the finding of a breach of the Code of ethics violates the expressive rights protected by s. 2(b) of the Charter. Because the 21-day suspension had already been served when he was before the Court of Appeal, he did not appeal the penalty. The reasonableness of its length, therefore, is not before us.
[a distinction between Charter STATUTE strike-downs and admin decision-makers RULINGS]
[23] It is clear from the decisions of the Tribunal and the reviewing courts in this case that there is some confusion about the appropriate framework to be applied in reviewing administrative decisions for compliance with Charter values. Some courts have used the same s. 1 Oakes analysis used for determining whether a law complies with the Charter; others have used a classic judicial review approach.
[they seem to equate admin rulings with discretionary ones]
[24] It goes without saying that administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values (see Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710, at para. 71; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at paras. 19-23; and Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at paras. 62-75). The question then is what framework should be used to scrutinize how those values were applied?
[Slaight now wrong, but prescient]
[25] In Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, Lamer J., in his concurring reasons, said that the Charter applied to a labour adjudicator’s decision and used the s. 1 framework developed in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, to determine if the decision complied with the Charter. Writing for the majority, Dickson C.J. agreed with Lamer J. that the Charter applied to administrative decision-making. But while he applied the Oakes framework, he notably and presciently observed that “[t]he 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” (p. 1049 (emphasis added)).
[Oakes test considered]
[26] Yet the approach taken in Slaight can only be properly understood in its context. Importantly, when Lamer J. held that discretionary administrative decisions implicating Charter values should be reviewed under the Oakes analysis, he did so in the context of the perceived inability of administrative law to deal with Charter infringements in the exercise of discretion. This concern permeates the reasons in Slaight. As Prof. Geneviève Cartier has noted:... while Lamer J thought the administrative law standard was ill-suited to Charter challenges because of its inability to inquire into the substance of discretionary decisions, Dickson CJ thought it was ill-suited because of its inability to properly unravel the value inquiries involved in any Charter litigation.
(“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 (2004), 61, at p. 68) [Slaight - still discretion]
[27] The approach taken in Slaight attracted academic concern from administrative law scholars. Prof. John Evans argued 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 will be overlooked or lost altogether” (“The Principles of Fundamental Justice: The Constitution and the Common Law” (1991), 29 Osgoode Hall L.J. 51, at p. 73). Similarly, Prof. Cartier suggested that the Slaight approach reduced the role of administrative law to the “formal determination of jurisdiction on the basis of statutory interpretation”, which prevented the control of discretion with reference to “values” and presented “an impoverished picture of administrative law” (pp. 68-69).
[Baker - discretion]
[28] The scope of the review of discretionary administrative decisions that provided the backdrop for the decision in Slaight was altered by this Court’s decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 65. In that case, L’Heureux-Dubé J. concluded that administrative decision-makers were required to take into account fundamental Canadian values, including those in the Charter, when exercising their discretion (Baker, at paras. 53-56).
[Baker/values]
[29] Building on the decision in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227 (“C.U.P.E.”), Baker represented a further shift away from Diceyan principles. By 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 (David Dyzenhaus and Evan Fox-Decent, “Rethinking the Process/Substance Distinction: Baker v. Canada” (2001), 51 U.T.L.J. 193, at p. 240). This allows the Charter to “nurture” administrative law, by emphasizing that Charter values infuse the inquiry (Cartier, at pp. 75 and 86; see also 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 (2008), 77, at p. 100; Susan L. Gratton and 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 (2011), 145, at pp. 157-58).
[recent history||Dunsmuir and Conway (Charter jurisd where question of law jurisdiction)]
[30] When this is weighed together with this Court’s subsequent decisions, we see a completely revised relationship between the Charter, the courts, and administrative law than the one first encountered in Slaight. In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Court held that judicial review should be guided by a policy of deference, 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 (para. 49). And in R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at paras. 78-82, building on the development of the jurisprudence, the Court found 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.
[more history, where s.1 Oakes followed]
[31] But, as predicted by Chief Justice Dickson, this Court has explored different ways to review the constitutionality of administrative decisions, vacillating between the values-based approach in Baker and the more formalistic template in Slaight. The s. 1 Oakes approach suggested by Lamer J., was followed in Stoffman v. Vancouver General Hospital, 1990 CanLII 62 (SCC), [1990] 3 S.C.R. 483; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825; Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442.
[more history, where Charter 'values' followed]
[32] Other cases, and particularly recently, have instead applied an administrative law/judicial review analysis in assessing whether the decision-maker took sufficient account of Charter values. This approach is seen in Baker; Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772; Chamberlain; Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1 S.C.R. 72; Pinet; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Criminal Lawyers’ Association; and Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281.
[last Oakes SCC case: Multani]
[33] The last decision of this Court to use the full s. 1 Oakes approach to determine whether the exercise of statutory discretion complied with the Charter was Multani. The academic commentary that followed was consistently critical. In brief, it generally argued that the use of a strict s. 1 analysis reduced administrative law to having a formal role in controlling the exercise of discretion (see Gratton and Sossin, at p. 157; David Mullan, “Administrative Tribunals and Judicial Review of Charter Issues after Multani” (2006), 21 N.J.C.L. 127; Stéphane Bernatchez, “Les rapports entre le droit administratif et les droits et libertés: la révision judiciaire ou le contrôle constitutionnel?” (2010), 55 McGill L.J. 641).
["a more robust conception of administrative law"]
[34] Since then, and largely as a result of the revised administrative law template found in Dunsmuir, this Court appears to have moved away from Multani, leading to the suggestion that it may have “decided to start from ground zero in building coherence in public law” (Gratton and Sossin, at p. 161). Today, the Court has two options for reviewing discretionary administrative decisions that implicate Charter values. The first is to adopt the Oakes framework, developed for reviewing laws for compliance with the Constitution. This undoubtedly protects Charter rights, but it does so at the risk of undermining a more robust conception of administrative law. In the words of Prof. Evans, if administrative law is bypassed for the Charter, “a rich source of thought and experience about law and government will be overlooked” (p. 73).
[tribunal expertise good]
[35] The alternative is for the Court to embrace a richer conception of administrative law, under which discretion is exercised “in light of constitutional guarantees and the values they reflect” (Multani, at para. 152, per LeBel J.). Under this approach, it is unnecessary to retreat to a s. 1 Oakes analysis in order to protect Charter values. Rather, administrative decisions are always required to consider fundamental values. The Charter simply acts as “a reminder that some values are clearly fundamental and . . . cannot be violated lightly” (Cartier, at p. 86). The administrative law approach also recognizes the legitimacy that this Court has given to administrative decision-making in cases such as Dunsmuir and Conway. These cases emphasize that administrative bodies are empowered, and indeed required, to consider Charter values within their scope of expertise. Integrating Charter values into the administrative 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” (Liston, at p. 100).
[admin Charter is case and fact specific]
[36] As explained by Chief Justice McLachlin in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, the approach used when reviewing the constitutionality of a law should be distinguished from the approach used for reviewing an administrative decision that is said to violate the rights of a particular individual (see also Bernatchez). When Charter values are applied to an individual administrative decision, they are being applied in relation to a particular set of facts. Dunsmuir tells us this should attract deference (para. 53; see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 39). When a particular “law” is being assessed for Charter compliance, on the other hand, we are dealing with principles of general application.
[a more flexible approach (and admin equates with discretion again)... now into justification]
[37] The more flexible administrative approach to balancing Charter values is also more consistent with the nature of discretionary decision-making. Some 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. For 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” (Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 53).
[nope to Oakes]
[38] Moreover, 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.
[same; but useful re Charter v common law]
[39] This Court has already recognized the difficulty of applying the Oakes framework beyond the context of reviewing a law or other rule of general application. This has been the case in applying Charter values to the common law, “where there is no specific enactment that can be examined in terms of objective, rational connection, least drastic means and proportionate effect” (Peter W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 2, at section 38.15). In R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63, for example, in assessing the common law rule relating to establishing intent under extreme intoxication, the Court held that no Oakes analysis was required when reviewing a common law rule for compliance with Charter values:If a new common law rule could be enunciated which would not interfere with an accused person’s right to have control over the conduct of his or her defence, I can see no conceptual problem with the Court’s simply enunciating such a rule to take the place of the old rule, without considering whether the old rule could nonetheless be upheld under s. 1 of the Charter. Given that the common law rule was fashioned by judges and not by Parliament or a legislature, judicial deference to elected bodies is not an issue. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken. [pp. 93-94, citing R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, at p. 978.] [charter v common law - Oakes not used; justification and Oakes onus]
[40] In Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, this Court explicitly rejected the use of the s. 1 Oakes framework in developing the common law of defamation for two reasons. First, when interpreting a common law rule, there is no violation of a Charter right, but a conflict between principles, so “the balancing must be more flexible than the traditional s. 1 analysis”, with Charter values providing the guidelines for any modification to the common law (para. 97). Second, the Court noted that “the division of onus which normally operates in a Charter challenge” was not appropriate for private litigation under the common law, as the party seeking to change the common law should not be allowed to benefit from a reverse onus (para. 98). As a result, the Court went on to “consider the common law of defamation in light of the values underlying the Charter” (para. 99). And in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Court relied on Charter values in introducing the new defence of responsible communication on matters of public interest to the law of defamation, without engaging in an Oakes analysis.
[same re common law - no Oakes, rather 'balancing interests and values']
[41] A further example is found in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156, where the Court dealt with the common law of secondary picketing. After concluding that freedom of expression was engaged, the Court did not embark on an Oakes analysis. Instead, it found that the appropriate question was “which approach [to regulating secondary picketing] best balances the interests at stake in a way that conforms to the fundamental values reflected in the Charter?” (para. 65).
[Oakes nope, turning to admin/charter now]
[42] Though each of these cases engaged Charter values, the Court did not see the Oakes test as the vehicle for balancing whether those values were taken into sufficient account. The same is true, it seems to me, in the administrative law context, where decision-makers are called upon to exercise their statutory discretion in accordance with Charter protections.
[when determining constitutionality, the SOR is correctness; not sure about admin decider rulings]
[43] What is the impact of this approach on the standard of review that applies when assessing the compliance of an administrative decision with Charter values? There is no doubt that when a tribunal is determining the constitutionality of a law, the standard of review is correctness (Dunsmuir, at para. 58). It is not at all clear to me, however, based on this Court’s jurisprudence, that correctness should be used to determine whether an administrative decision-maker has taken sufficient account of Charter values in making a discretionary decision.
[leaning to reasonableness for admin]
[44] This Court elaborated on the applicable standard of review to legal disciplinary panels in the pre-Dunsmuir decision of Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, where Iacobucci J. adopted a reasonableness standard in reviewing a sanction imposed for professional misconduct: Although there is a statutory appeal from decisions of the Discipline Committee, the expertise of the Committee, the purpose of its enabling statute, and the nature of the question in dispute all suggest a more deferential standard of review than correctness. These factors suggest that the legislator intended that the Discipline Committee of the self-regulating Law Society should be a specialized body with the primary responsibility to promote the objectives of the Act by overseeing professional discipline and, where necessary, selecting appropriate sanctions. In looking at all the factors as discussed in the foregoing analysis, I conclude that the appropriate standard is reasonableness simpliciter. Thus, on the question of the appropriate sanction for professional misconduct, the Court of Appeal should not substitute its own view of the “correct” answer but may intervene only if the decision is shown to be unreasonable. [Emphasis added; para. 42.] [Dunsmuir 'reasonableness' rules]
[45] It seems to me that applying the Dunsmuir principles results in reasonableness remaining the applicable review standard for disciplinary panels. The issue then is whether this standard should be different when what is assessed is the disciplinary body’s application of Charter protections in the exercise of its discretion. In my view, the fact that Charter interests are implicated does not argue for a different standard.
[expertise as the first justification]
[46] The starting point is the expertise of the tribunals in connection with their home statutes. Citing Prof. David Mullan, Dunsmuir confirmed the importance of recognizing thatthose working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime ...
(para. 49, citing “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93.) And, as Prof. Evans has noted, the “reasons for judicial restraint in reviewing agencies’ decisions on matters in which their expertise is relevant do not lose their cogency simply because the question in issue also has a constitutional dimension” (p. 81).
[same]
[47] An administrative decision-maker exercising a discretionary power under his or her home statute, has, by virtue of expertise and specialization, particular familiarity with the competing considerations at play in weighing Charter values. As the Court explained in Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570, adopting the observations of Prof. Danielle Pinard:[translation] ... administrative tribunals have the skills, expertise and knowledge in a particular area which can with advantage be used to ensure the primacy of the Constitution. Their privileged situation as regards the appreciation of the relevant facts enables them to develop a functional approach to rights and freedoms as well as to general constitutional precepts.
(p. 605, citing “Le pouvoir des tribunaux administratifs québécois de refuser de donner effet à des textes qu’ils jugent inconstitutionnels” (1987-88), McGill L.J. 170, at pp. 173-74.) tribunals better for 'case by case' matters]
[48] This case, among others, reflected the increasing recognition by this Court of the distinct advantage that administrative bodies have in applying the Charter to a specific set of facts and in the context of their enabling legislation (see Conway, at paras. 79-80). As Major J. noted in dissent in Mooring v. Canada (National Parole Board), 1996 CanLII 254 (SCC), [1996] 1 S.C.R. 75, tailoring the Charter to a specific situation “is more suited to a tribunal’s special role in determining rights on a case by case basis in the tribunal’s area of expertise” (para. 64; see also C.U.P.E., at pp. 235-36).
[examples of Charter and admin]
[49] These principles led the Court to apply a reasonableness standard in Chamberlain, where McLachlin C.J. found that a school board had acted unreasonably in refusing to approve the use of books depicting same-sex parented families. She held that the board had failed to respect the “values of accommodation, tolerance and respect for diversity” which were incorporated into its enabling legislation and “reflected in our Constitution’s commitment to equality and minority rights” (para. 21). Similarly, in Pinet, Binnie J. used a reasonableness standard to review, for compliance with s. 7 of the Charter, a decision of the Ontario Review Board to return the appellant to a maximum security hospital, observing that a reasonableness review best reflected “the expertise of the members appointed to Review Boards” (para. 22). The purpose of the exercise was to determine whether the decision was “the least onerous and least restrictive” of the liberty interests of the appellant while considering “public safety, the mental condition and other needs of the individual concerned, and his or her potential reintegration into society” (paras. 19 and 23). In Pinet, the test was laid out in the statute, but Binnie J. made it clear that the emphasis on the least infringing decision was a constitutional requirement.
[another example]
[50] In Lake, where the Court was reviewing the Minister’s decision to surrender a Canadian citizen for extradition, implicating ss. 6(1) and 7 of the Charter, the Court again applied a reasonableness standard. LeBel J. held that deference is owed to the Minister’s decision, as the Minister is closer to the relevant facts required to balance competing considerations and benefits from expertise:This Court has repeatedly affirmed that deference is owed to the Minister’s decision whether to order surrender once a fugitive has been committed for extradition. The issue in the case at bar concerns the standard to be applied in reviewing the Minister’s assessment of a fugitive’s Charter rights. Reasonableness is the appropriate standard of review for the Minister’s decision, regardless of whether the fugitive argues that extradition would infringe his or her rights under the Charter. As is evident from this Court’s jurisprudence, to ensure compliance with the Charter in the extradition context, the Minister must balance competing considerations, and where many such considerations are concerned, the Minister has superior expertise. The assertion that interference with the Minister’s decision will be limited to exceptional cases of “real substance” reflects the breadth of the Minister’s discretion; the decision should not be interfered with unless it is unreasonable (Schmidt [Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500]) (for comments on the standards of correctness and reasonableness, see Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9). [Emphasis added; para. 34.] [always correctness result in 'retrying' - it's micro-managing!]
[51] The alternative — adopting a correctness review in every case that implicates Charter values — will, as Prof. Mullan noted, essentially lead to courts “retrying” a range of administrative decisions that would otherwise be subjected to a reasonableness standard:If correctness review becomes the order of the day in all Charter contexts, including the determination of factual issues and the application of the law to those facts, then what in effect can occur is that the courts will perforce assume the role of a de novo appellate body from all tribunals the task of which is to make decisions that of necessity have an impact on Charter rights and freedoms: Review Boards, Parole Boards, prison disciplinary tribunals, child welfare authorities, and the like. Whether that kind of judicial micro-managing of aspects of the administrative process should take place is a highly problematic question. [Emphasis added; p. 145.] [summary]
[52] So our choice is between saying that every time a party argues that Charter values are implicated on judicial review, a reasonableness review is transformed into a correctness one, or saying that while both tribunals and courts can interpret the Charter, the administrative decision-maker has the necessary specialized expertise and discretionary power in the area where the Charter values are being balanced.
[present case is an example of problems of correctness for all Charter cases]
[53] The decisions of legal disciplinary bodies offer a good example of the problem of applying a correctness review whenever Charter values are implicated. Most breaches of art. 2.03 of the Code of ethics calling for “objectivity, moderation and dignity”, necessarily engage the expressive rights of lawyers. That would mean that most exercises of disciplinary discretion under this provision would be transformed from the usual reasonableness review to one for correctness.
[it's heavily contextual]
[54] Nevertheless, as McLachlin C.J. noted in Catalyst, “reasonableness must be assessed in the context of the particular type of decision making involved and all relevant factors. It is an essentially contextual inquiry” (para. 18). Deference is still justified on the basis of the decision-maker’s expertise and its proximity to the facts of the case. Even where Charter values are involved, the administrative decision-maker will generally be in the best position to consider the impact of the relevant Charter values on the specific facts of the case. But both decision-makers and reviewing courts must remain conscious of the fundamental importance of Charter values in the analysis.
[results: it's a balance of Charter and statutory objectives]
[55] How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances the Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives. In Lake, for instance, the importance of Canada’s international obligations, its relationships with foreign governments, and the investigation, prosecution and suppression of international crime justified the prima facie infringement of mobility rights under s. 6(1) (para. 27). In Pinet, the twin goals of public safety and fair treatment grounded the assessment of whether an infringement of an individual’s liberty interest was justified (para. 19).
[next, proportionality - how is the Charter best-protected? Here the JR SOR 'reasonableness' test MERGES with the Oakes s.1 test ...]
[56] Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives. This is where the role of judicial review for reasonableness aligns with the one applied in the Oakes context. As this Court recognized in RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 160, “courts must accord some leeway to the legislator” in the Charter balancing exercise, and the proportionality test will be satisfied if the measure “falls within a range of reasonable alternatives”. The same is true in the context of a review of an administrative decision for reasonableness, where decision-makers are entitled to a measure of deference so long as the decision, in the words of Dunsmuir, “falls within a range of possible, acceptable outcomes” (para. 47).
[same]
[57] On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155), and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.
[58] If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable. At paras 59-71 the court continues to apply this new doctrine to the lawyer-expression case below.
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