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Charter - Administrative - Loyola. Loyola High School v. Quebec (Attorney General)
In Loyola High School v. Quebec (Attorney General) (SCC, 2024) the Supreme Court of Canada allowed an appeal, that from a Quebec CA allowing an appeal, that from a Quebec Superior Court granting of a JR, that from a Ministerial "decision to deny an exemption sought by a private, Catholic school" from a mandatory "Program on Ethics and Religious Culture (ERC)" where the Minister "based her decision on the fact that the school’s whole proposed program was to be taught from a Catholic perspective".
Here the court follows up on the 2012 administrative Charter case of Dore v. Barreau du Québec, expounding on 'proportionate balancing' which "finds analytical harmony with the final stages of the Oakes framework used to assess the reasonableness of a limit on a Charter right under s. 1: minimal impairment and balancing" [SS: my italics]:[3] This Court’s decision in Doré v. Barreau du Québec, 2012 SCC 12 (CanLII), [2012] 1 S.C.R. 395, sets out the applicable framework for assessing whether the Minister has exercised her statutory discretion in accordance with the relevant Canadian Charter of Rights and Freedoms protections. Doré succeeded a line of conflicting jurisprudence which veered between cases like Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, and Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 (CanLII), [2006] 1 S.C.R. 256, that applied s. 1 (and a traditional Oakes analysis) to discretionary administrative decisions, and those, like Lake v. Canada (Minister of Justice), 2008 SCC 23 (CanLII), [2008] 1 S.C.R. 761, which applied an administrative law approach. The result in Doré was to eschew a literal s. 1 approach in favour of a robust proportionality analysis consistent with administrative law principles.
[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.
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[32] Loyola does not challenge the Minister’s statutory authority to impose curricular requirements, but rather her discretionary decision to deny Loyola an exemption from the ERC Program. The reasonableness of the Minister’s decision depends on whether it reflected a proportionate balance between 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 the religious freedom of the members of the Loyola community who seek to offer and wish to receive a Catholic education.
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[35] This case, as the Court of Appeal noted and as the parties before this Court accepted, squarely engages the framework set out in Doré, which applies to discretionary administrative decisions that engage the Charter. Doré requires administrative decision-makers to proportionately balance the Charter protections —values and rights — at stake in their decisions with the relevant statutory mandate: Doré, at para. 55.
[36] As Aharon Barak explained, the purpose of a constitutional right is the realization of its constitutional values: Human Dignity: The Constitutional Value and the Constitutional Right (2015), at p. 144. In 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: Hutterian Brethren, at para. 88; Lorne Sossin and Mark Friedman, “Charter Values and Administrative Justice” (2014), 67 S.C.L.R. (2d) 391, at pp. 403-4.
[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: Doré, at para. 57. Reasonableness review is a contextual inquiry: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 (CanLII), [2012] 1 S.C.R. 5, at para. 18. In the context of decisions that implicate the Charter, to be defensible, a decision must accord with the fundamental values protected by the Charter.
[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: Doré, at para. 57. As Aharon Barak noted, “Reasonableness in [a strong] sense strikes a proper balance among the relevant considerations, and it does not differ substantively from proportionality”: “Proportionality (2)”, in The Oxford Handbook of Comparative Constitutional Law (2012), Michel Rosenfeld and András Sajó, eds., 738, at p. 743.
[39] The preliminary issue is whether the decision engages the Charter by limiting its protections. If such a limitation has occurred, then “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”: Doré, at para. 57. A proportionate balancing is one that gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate. Such a balancing will be found to be reasonable on judicial review: Doré, at paras. 43-45.
[40] A Doré proportionality analysis finds analytical harmony with the final stages of the Oakes framework used to assess the reasonableness of a limit on a Charter right under s. 1: minimal impairment and balancing. Both R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, and Doré require that Charter protections are affected as little as reasonably possible in light of the state’s particular objectives: see RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 160. As such, Doré’s proportionality analysis is a robust one and “works the same justificatory muscles” as the Oakes test: Doré, at para. 5.
[41] The Doré analysis is also a highly contextual exercise. 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: RJR-MacDonald, at para. 160.
[42] Doré’s approach to reviewing administrative decisions that implicate the Charter, including those of adjudicative tribunals, responds to the diverse set of statutory and procedural contexts in which administrative decision-makers operate, and respects the expertise that these decision-makers typically bring to the process of balancing the values and objectives at stake on the particular facts in their statutory decisions: para. 47; see also David Mullan, “Administrative Tribunals and Judicial Review of Charter Issues After Multani” (2006), 21 N.J.C.L. 127, at p. 149; and 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. As Lorne Sossin and Mark Friedman have observed in their cogent article:While the Charter jurisprudence can shed light on the scope of Charter values, it remains for each tribunal to determine . . . how to balance those values against its policy mandate. For example, while personal autonomy may be a broadly recognized Charter value, it will necessarily mean something different in the context of a privacy commission than in the context of a parole board. [p. 422]
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