Prescribing Greater Protection for Rights : Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms

"Prescribing Greater Protection for Rights : Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms" (2014) 65 Supreme Court Law Review 247

Abstract

Canadian courts have struggled to interpret the “prescribed by law” requirement contained in section 1 of the Charter of Rights and Freedoms. Indeed, they have frustrated the achievement of its three functions: furthering the rule of law; heightening accountability; and providing additional protection for the individual. The flawed analytical framework set out by the Supreme Court of Canada in Slaight Communications (1989) was worsened by the recent decision in Doré (2012). I argue for a return to the pre-Doré situation, as outlined in the majority reasons of Justice Charron in Multani (2006).

I also argue that improvements to the analytical framework can be effected by using the tools of administrative law. Justification, transparency and intelligibility are the touchstones of reasonableness in administrative decision-making. Administrative decision-makers who fail to confine, structure and check their discretion by adopting “soft law” instruments, such as publicly available guidelines, risk seeing their decisions struck down as unreasonable by reviewing courts. And if decisions are unreasonable, they cannot be “prescribed by law” within the meaning of section 1 of the Charter. This argument responds to some of the flaws of the Slaight Communications framework and helps to achieve the functions of the “prescribed by law” requirement.

This content has been updated on May 2, 2023 at 16:18.