The Doctrinal Roots of Charter Values

In one of the most interesting scholarly works of the past decade, Professor Peter Cane offered, in Controlling Administrative Power: An Historical Comparison (CUP, 2016), an institutional explanation for divergence between jurisdictions. He identified the “similarities and differences” in the “systems of government” (at 2) as an explanatory device and went on over the course of several hundred pages, to describe the similarities and differences of UK, US and Australian administrative law.

Last week’s Supreme Court of Canada decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 (noted here) has excited — as any mention of Charter values inevitably does — significant resistance on social media. However, it is necessary to take a step back and appreciate CSFTNO in its broader institutional context. There are, in fact, fairly deep doctrinal roots nourishing the decision.

In Canada, unlike other common law jurisdictions, analysis of constitutional issues is decentralized. Administrative decision-makers are entitled to consider constitutional questions (Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 SCR 504), provide constitutional remedies (R. v. Conway, 2010 SCC 22, [2010] 1 SCR 765) and discharge the Crown’s duty to consult Indigenous peoples (Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, [2017] 1 SCR 1069; Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 SCR 1099). A decision-maker’s parent statute might limit their ability to consider constitutional questions (though the test in this regard is extremely permissive) or their ability to grant remedies (and here the constraints are often more significant). In principle, however, the constitution is “not some Holy Grail which only judicial initiates of the superior court may touch” (Cooper v. Canada (Human Rights Commission), [1996] 3 SCR 854, at para. 70). 

This position differs from that in other jurisdictions. In Ireland, the contrasting view has been expressed most forcefully (see here, pp. 4-5). In England, too, judicial review is centralized in the court system (and the tribunal system there functions as a court substitute).

Defensible normative reasons have been offered for the Canadian position. Each of sections 24 (remedies), 35 (Indigenous rights) and 52 (constitutional questions) provides a textual basis for administrative decision-makers to consider the Constitution.

• Section 24 refers to a “court of competent jurisdiction”, which was interpreted by a unanimous Supreme Court in Conway as extending in principle to administrative decision-makers (subject to limitations on their competence to grant remedies inconsistent with their parent statute).
• Section 35 makes Indigenous rights enforceable, has been held to be a recognition of Canada’s duties to Indigenous peoples and a unanimous Supreme Court in Clyde River and Chippewas of the Thames held that administrative decision-makers can wear the “Crown” for the purposes of discharging the Honour of the Crown.
• Section 52 makes the Constitution the supreme law of the land and a unanimous Supreme Court concluded in Martin that an administrative decision-maker could not enforce an unconstitutional law and, thus, had to be empowered to consider constitutional questions (subject to the power being withdrawn by clear statutory language or by necessary implication): “[it is] the most fundamental question of law one could conceive, as it will determine whether the enactment is in fact valid law, and thus whether it ought to be interpreted and applied as such or disregarded” (at para. 28).

Simply put, the constitution binds administrative decision-makers and they must often determine themselves what constitutional compliance entails.

I do not say that these unanimous decisions are necessarily correct. They have a textual basis. But one could legitimately interpret the provisions at issue differently. Nonetheless, the decentralization of the Canadian Constitution has occurred through a series of unanimous Supreme Court decisions over the last two decades. With all due respect to the contrary view, this is the current “constitutional settlement”.

There are also good practical reasons for this position. Most importantly, the sweep of the administrative state is such that the bodies most likely to infringe upon or vindicate constitutional rights are administrative decision-maker. This point was made pithily by McLachlin J in Cooper: “Many more citizens have their rights determined by these tribunals than by the courts.  If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals” (at para. 70). This passage was quoted with approval in Martin, where Gonthier J added: “Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts” (at para. 29). In Conway, where the logic of Martin was extended to remedies, Abella J commented: “If … expert and specialized tribunals with the authority to decide questions of law are in the best position to decide constitutional questions when a remedy is sought under s. 52 of the Constitution Act, 1982, there is no reason why such tribunals are not also in the best position to assess constitutional questions when a remedy is sought under s. 24(1) of the Charter” (at para. 80; see also Clyde River, at paras. 29-34). As Angela Cameron and I wrote, a decade ago, consideration of constitutional issues by administrative decision-makers fills a significant gap:

[Judicial review] ought not, however, to be the sole focus of attention. Decisions and the decision-making processes that produce them will always be individuals’ first points of contact with administrative law. Often, they will be the last. Lack of resources may preclude an individual from seeking judicial review, and judicial doctrines of justiciability may preclude judges from entertaining the merits of individual cases. Placing too much emphasis on judicial review in the education context blithely presupposes that courts can consistently conduct necessary oversight. Yet it is more likely that judicial control will be exercised in fits and starts, if at all in the case of lower-level decision-makers (see also Clyde River, at para. 23: “judicial review is no substitute for adequate consultation…adequate Crown consultation before project approval is always preferable to after-the-fact judicial remonstration following an adversarial process”).

In addition, when infringements of the Constitution come before the courts on judicial review it is often quite useful to have the considered views of the decision-maker responsible for administering the statute in question: “the factual findings and record compiled by an administrative tribunal, as well as its informed and expert view of the various issues raised by a constitutional challenge, will often be invaluable to a reviewing court” (Martin, at para. 30). This point has been made repeatedly in the jurisprudence and bolsters the proposition that constitutional issues should generally be raised before the decision-maker and not for the first time on judicial review. 

There are, in short, good principled and practical reasons for decentralized enforcement of the Constitution.

What has all this got to do with Charter values? In a structurally decentralized system for interpreting the Constitution, there is an inevitable tension between doctrinal rigour and non-lawyerly thinking about legal principles. There is a choice between requiring administrative decision-makers to apply the Constitution as courts would and permitting them to take a more informal approach that permits them to bring a non-lawyerly perspective to bear on constitutional issues. There is nothing inevitable about the choice in favour of informality made in Doré and reaffirmed in CSFTNO but, again, principled and practical reasons can be provided.

In “The Inevitability of Discretion and Judgement in Front-Line Decision-making in the Administrative State”, I wrote:

It would be unrealistic to expect front-line officials to think like lawyers because, most of the time, they are not trained lawyers…Given the reality of how front-line officials actually exercise discretion and judgement, inculcating deep knowledge of – say – the principles of statutory and constitutional interpretation in front-line officials would be very difficult. Not only are the technicalities of legal interpretation hard to master, this knowledge (if inculcated) would have to compete in any event with the cultural norms embedded in the decision-making environment.

It would also be inappropriate to expect front-line officials to master the details of legal interpretation. Where a legislative choice has been made to delegate authority to bodies other than courts, it ill becomes courts to insist on the application of judicially crafted doctrine to circumscribe the authority of administrative officials. Such an approach holds non-lawyers to legal standards and forces them to adopt an interpretive mindset that is not necessarily their own. The upshot is that all front-line officials have to think like lawyers, even if the whole point of empowering them in the first place was to avoid having decisions made by people who think like lawyers (see also Professor Lewans).

If administrative decision-makers are required to reason like courts — law books at their elbows — the practical benefits of decentralization are lost and the principled reasons for it are undermined. If this were the case, an administrative decision-making process would simply be the launchpad for consideration of issues by the courts. Pervasive correctness review, as Professor Mullan pointed out in 2006, would be problematic:

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 (“Administrative Tribunals and Judicial Review of Charter Issues after Multani” (2006) 21 NJCL 127, at p. 145; see also Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, at para. 33).

In other common law jurisdictions, constitutional provisions are the preserve of the courts and so administrative tribunals may not have to deal with them at all. But as soon as they are allowed to deal with constitutional provisions, the legal system has to face up to the fact that it is unrealistic and inappropriate to require non-lawyers to master the doctrinal intricacies of constitutional law. Hence the emergence of  Charter “values” as an integral part of the framework for front-line decision-making in the administrative state. If one wants to ensure the principled and practical benefits of decentralized enforcement of the constitution, informality is the better approach:

This approach recognizes that it would be unrealistic and inappropriate to require administrative officials to have Professor Hogg’s loose-leaf Constitutional Law of Canada text to hand whenever they encounter a human rights issue and Ruth Sullivan’s text on the interpretation of statutes on the shelf in case a knotty interpretive problem arises in the course of their work. It deformalizes the process of decision-making by front-line officials. Rather than the Charter, they are directed towards Charter values; rather than statutory text, they are directed towards statutory objectives. And they are directed to balance Charter values against statutory objectives, having regard to “the specific facts of the case”…There is no free pass for front-line officials: they must make a good faith, conscientious attempt to apply the Charter and respect the human rights of those citizens with whom they come into contact. This does not require them to engage in a detailed proportionality analysis (the so-called “Oakes test”) but to balance Charter values with their statutory objectives. They must, the Supreme Court has recently emphasized in its articulation of reasonableness review in Vavilov v Canada (Immigration and Citizenship), justify their decisions in light of the applicable legal and factual constraints, be responsive to the arguments made by the individuals who appear before [them] and take particular care with decisions which have potentially harsh consequences for those concerned.

Again, this is the “constitutional settlement”, as it has developed over many years of case law. This is the doctrinal and institutional structure behind CSFTNO. It is designed to facilitate the consideration of constitutional issues by administrative decision-makers. Doing away with Doré might not be workable without doing away with much else besides.

Now, my primary concern with this constitutional settlement was always the risk of under-powered judicial review. Vavilov has, however, taken care of that: judicial review for constitutional compliance will be appropriately robust (see especially Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425). CSFTNO adds that decision-makers will often have to consider Charter values. It is important to be clear that in many instances, the relevance of Charter values will arise from the evidence and submissions before the decision-maker: a decision-maker has to meaningfully grapple with the central planks of the matter as presented by the party or parties. If a constitutional issue is presented, it too must be properly addressed. This is Vavilov 101.

CSFTNO makes clear that Charter values may be relevant in other circumstances but only where this is obvious from the decision-making context. CSFTNO was one such instance and I think the Supreme Court was unarguably right (though I suppose I have to agree because they cited me for this proposition) that a Minister deciding whether to admit students to minority language school should bear the purposes of minority language education in mind. I would note that something similar could be said of the recent decision in Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at paras. 109-111: once it became clear that one of the consequences of the tribunal’s interpretation of the statute would be a risk of refoulement in breach of what is generally accepted to be a norm of customary international law, then it does become unarguable that the point ought to have been considered by the tribunal.

The other instances one finds in the case law relate to policy-making. For my part I again find it unarguable that a law society should put its mind to freedom of religion and equality when determining a Christian university’s application for accreditation (Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293); that a municipality should consider freedom of speech when making decisions that impact residents’ ability to express themselves (Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA 154; Guelph and Area Right to Life v. City of Guelph, 2022 ONSC 43); and that a school board should have careful regard to freedom of conscience when setting policies on the wearing of religious symbols in the classroom (Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256). 

In each of these instances, officials in the administrative state exercise significant authority over the citizenry. If they must conform to the constitution (not least because citizens may lack the wherewithal and resources to bring them to court) and it is unrealistic and inappropriate to expect them to conduct a full-fledged proportionality analysis, then they are properly required to consider Charter values before they implement their chosen policies. 

There is one last point to make. From participating in (I was counsel for an intervener in CSFTNO) and watching recent Supreme Court of Canada hearings it is clear that Vavilov is exerting a significant gravitational pull. All of the judges seem genuinely committed to faithful implementation of the Vavilov framework. The most important aspect of CSFTNO is that the Doré duty has been subsumed into the Vavilov framework. I expect that the integration of Doré and Vavilov will be further strengthened when the Court hands down judgment in the appeal from Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476. I also hope (wearing a new hat as co-counsel for the appellant) that Vavilov will be held in the appeal from Auer v. Auer, 2022 ABCA 375 to apply to judicial review of regulations. Evidently, the judges at the Court worked very hard to put Vavilov together, take great pride in the framework they produced and are committed to ensuring that it does not meet the fate of its administrative law predecessors.

The decision in CSFTNO is not perfect. I have already commented that the rights/values distinction could have been more clearly drawn. In addition, the statement  that a court may, when a value or right is engaged, reweigh relevant considerations strikes me as unnecessary to the outcome in CSFTNO and probably unhelpful. Perhaps, too, Côté J could have engaged more directly with critics of values (albeit the relevant ones in CSFTNO have been clearly set out in previous Supreme Court decisions) and Doré (albeit that the scholarship on the Doré duty considered in CSFTNO is somewhat sparse). Reading the decision fairly, however, and in light of the background constitutional and institutional context set out in this post, CSFTNO should come as no surprise. In fact, the Doré duty has surprisingly deep doctrinal roots.

This content has been updated on December 11, 2023 at 23:42.