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Discretion - Characterized. Restoule v. Canada (Attorney General)
In Restoule v. Canada (Attorney General) (Ont CA, 2021) the Court of Appeal considered basics applicable to discretion:[192] In the seminal Baker decision, L’Heureux-Dubé J. noted: “The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.”[125] It is now trite law that “there is no such thing as absolute and untrammelled ‘discretion’”.[126] Where discretion is granted by statute, that discretion, said L’Heureux-Dubé J., “must 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.”[127] These boundaries set a reasonable “margin of manoeuvre” for a decision-maker exercising discretion.[128] . Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an aborginal lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
Here the court considers boundaries of the legal concept of 'discretion':[153] Discretion refers to those “decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options” within constraints imposed by law (Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 52). The legal constraints can include, but are not limited to, “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” (para. 56; see also Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427, at paras. 32-33). In the present context, the relevant legal constraints include the constitutional principle of the honour of the Crown.
[154] This Court has long recognized that “there is no such thing as absolute and untrammelled ‘discretion’” (Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, at p. 140; Vavilov, at para. 108; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175, at para. 73). As noted by LeBel J. in Montréal (City), at para. 33, “in a country founded on the rule of law and in a society governed by principles of legality, discretion cannot be equated with arbitrariness”. Our law requires discretion to be “exercised within a specific legal framework”, and recognizes that “[d]iscretionary acts fall within a normative hierarchy” (para. 33). In a similar vein, Sir William Wade and Christopher Forsyth have stated that “in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms” (Wade & Forsyth’s Administrative Law (12th ed. 2023), at p. 303). Wade and Forsyth declared that a claim of unfettered discretion by government is “constitutional blasphemy. . . . Unfettered discretion cannot exist where the rule of law reigns” (p. 16). It is therefore not surprising that Ontario abandoned reliance on the first interpretation, or that it was unanimously rejected by the courts below.
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