Some Recent Scholarly Work on Doré v. Barreau du Québec
I have a long-standing interest in the Supreme Court of Canada’s decision in Doré v. Barreau du Québec, [2012] 1 SCR 395, 2012 SCC 12, in which the Court endorsed a deferential approach to administrative decisions infringing fundamental rights. See this paper, for example.
One of the most intriguing issues post-Doré is what the Court meant by its repeated references to Charter values. Two recent papers take on this issue.
Audrey Macklin, “Charter Right or Charter Lite? Administrative Discretion and the Charter“:
The Supreme Court of Canada has vacillated in its guidance about the incorporation of the Charter into the exercise of discretion. The author contends that Doré’s attempt to synchronize proportionality analysis (derived from constitutional adjudication) with deferential reasonableness review (derived from administrative law) is unsatisfactory. The replacement of Charter ‘right’ or ‘freedom’ with Charter ‘value’ obscures the recognition of rights and freedoms in play. The administrative law proportionality analysis that the Court endorses in Doré does not respect the primacy or priority of Charter rights, and curial deference toward the outcomes it produces exacerbate the dilution of rights protection. The author warns of the negative incentives this creates for governance and the rule of law. She proposes a set of alternative factors and considerations that ought to animate the exercise of discretion, and judicial review of discretion, where Charter rights or freedoms are at stake.
Lorne Sossin and Mark Friedman, “Charter Values and Administrative Justice“:
What would the Charter of Rights and Freedoms have looked like if it had been designed for administrative justice? This is a question underlying this study. Ever since the Canadian Supreme Court made clear in Slaight Communications that discretionary decisions of public officials were to be subject to the Charter of Rights and Freedoms, and expanded the reach of the Charter to most adjudicative tribunals, the Court has wrestled with the coherence of the relationship between the Charter and administrative justice. The Court attempted to synthesize its position and chart a new path forward beyond a traditional application of the Charter to incorporate a potentially broader but inchoate set of “Charter values” in its 2012 decision Doré. With this decision as a point of departure, the author’s elaborate a new framework for the development and application of Charter values in the distinct sphere of administrative justice.
For a summary of my own take, advanced in a paper with Angela Cameron, see here.
Last, but by no means least, for a generally positive take on Doré, see Matthew Lewans’ paper, “Administrative Law, Judicial Deference and the Charter” though note that Lewans takes the view that in its current state, Canadian administrative law is not a great vehicle for the protection of fundamental rights. Put another way, Lewans has no great difficulty with Doré, but grave difficulty with the Supreme Court’s doctrines of judicial review!
This content has been updated on October 29, 2014 at 08:53.