In Trinity Western, the Court confirmed (to undoubted cries of agony) that its approach to judicial review of administrative decisions implicating Charter rights, set out in Doré, is nominally still good law. But in application, the Court significantly changed Doré. It applied the typical tests developed in the context of constitutional challenges to legislation, not the new approach set out in Doré. One is forced to ask whether the ambitious Doré project worked out, or if it is one more example of the Supreme Court saying one thing and doing the opposite.
As a refresher, Doré held that the typical “two-step” approach to Charter adjudication does not apply in the case of an administrative decision engaging Charter rights. The typical approach, to the Court, was an awkward fit to the varied context of administrative decision-making . Instead, the Court’s new approach started from the unassailable proposition that all administrative decision-makers are bound by law, most notably the Charter. Because administrative decisions are “always required to consider fundamental values” under the Charter,  a decision-maker is supposed to balance “Charter values with the statutory objectives” . This was its answer to what courts should do when administrative decisions “implicate” Charter values .
On judicial review, the question was whether the balance was proportionate, nothing more or less. In effect, the Court merged administrative and constitutional review. But importantly, Doré said nothing else on when a Charter value arises, who has the burden of demonstrating the application of a Charter value on the facts, or what test a court applies to determine when a Charter value is engaged.
Specifically, the Court did not say that the tests which apply to Charter challenges of legislation apply in the context of administrative discretion. For example, Doré did not consider whether the typical test for s.2(b) of the Charter (the right at issue in Doré) applied on the facts. While this may be because the test for freedom of expression is quite permissive, I think there is something else at play. The Court did not explain how a claimed Charter value becomes constitutionally cognizable in the context of a case. In fact, arguably, the application of the typical Charter breach tests would be contrary to the Doré project; the Court expressly said that its “more flexible administrative approach” was “more consistent with the nature of discretionary decision-making” and its varied contexts . The application of court-made tests would be contrary to the supposed “deeply democratic” nature of Doré, which embraced a diffused form of constitutional decision-making, rejecting the idea that courts should undertake a de novo review of constitutional values on judicial review .
In the Court’s next case, Loyola, it introduced a new requirement. Loyola concluded that the first question in the case of a constitutional challenge to the exercise of discretion is “whether the decision engages the Charter by limiting its protections” . This first step was a prerequisite to a consideration of whether the statutory objectives and Charter rights were proportionately balanced by the decision-maker. But this “preliminary question” was not alluded to in Doré. In other words, the Doré Court did not make it a prerequisite to determine whether a right was “limited.” Doré used the term “implicated.”
This might be semantic, but I tend to think otherwise. There is a qualitative difference between a right being “limited” and a right being “implicated.” The former implies a prima facie assessment of merit—an analysis of whether there is some element of disproportionality. On the other hand, rights can be implicated without a finding of a limitation requiring justification. In fact, the Court put the question in Doré as which approach to apply when “a party argues that Charter values are implicated on judicial review”  (my emphasis). Implication seems to simply mean an argument.
In a likely attempt to make this distinction clearer, lower courts after Loyola added a new bug: the application of the tests typically used by courts to analyze constitutional challenges to legislation. In many ways, this is an understandable extension on the Loyola limitation requirement; these tests provide some doctrinal method by which to determine if a right is limited requiring justification.
Take E.T. v Hamilton-Wentworth District School Board. The context was a freedom of religion claim against the decision of a school board. The typical test to determine a freedom of religion infringement under s.2(a) provides that: (1) the claimant must demonstrate that he has a sincere religious belief (2) the claimant must show that the impugned law interferes with these beliefs in a manner that is more than trivial and insubstantial (see Hutterian Brethren, at para 32). The Court of Appeal for Ontario concluded that while the claimant made out a sincere religious belief (the subjective component of the test), the claimant failed to satisfy that the infringement at play interfered with that sincere belief . Justice Sharpe concluded that “[a]s I have found no interference with the appellant’s freedom of religion that would engage the protection of s.2(a), it is unnecessary for me to consider whether, under the Doré/Loyola framework” the decision was reasonable . While Lauwers and Miller JJA concurred in result with respect to the first part of the framework, they dissented in the reasoning, pointing out a number of challenges with the Supreme Court’s framework–and actually declining to apply the second step of the framework at all. But they did not dissent on the bifurcated nature of the analysis, and at any rate, the comments on the framework were likely obiter. For the record, E.T. does not stand alone.
In Trinity Western, the Court conducted the same analysis as in E.T. It first cited the two-step test for freedom of religion claims , and then concluded that “[i]f, based on this test, s.2(a) is not engaged, there is nothing to balance.”
E.T. and Trinity Western basically introduce the typical bifurcated Charter analysis which applies to legislation to the judicial review context. A right must be engaged/infringed before moving to the s.1 justification analysis. But this was not what Doré prescribed. It seemed to introduce a more holistic exercise, based around proportionality. In this way, Trinity Western seems like something qualitatively different than the balancing test employed in Doré—even if it does not embrace Oakes fully. In fact, it seems closer to Multani, a decision invoking the typical Charter tests applied to legislative challenges. That case predated Doré, and was roundly criticized by the Court.
All in all, this is good news for critics of Doré, but not for the predictability of the law on the whole. Doré was a dog of a decision, and much has been written criticizing it. I have previously attacked Doré because it undermined the purposive approach to constitutional interpretation, and the symbiotic relationship between the tests developed in particular Charter provisions and the Oakes test. In fact, this was a feature of Rowe J’s opinion in Trinity Western. Other critics abound.
Perhaps this is an example of the law working itself pure. Doré was unworkable, so lower courts (and the Supreme Court itself), simply relied on the existing tools of constitutional interpretation. This avoids many of the problems with Doré pointed to by critics, including the indeterminacy of a Charter “value” and what constitutes appropriate “balancing” under the Doré test. The development also introduces a screening device for Charter claims. While all decision-makers have a requirement to consider Charter arguments, there should be no requirement to conduct a proportionality analysis in every case where a litigant invokes the Charter, because the Charter simply may not arise on the facts. In short, the approach puts the focus back on specific Charter rights and their purposes.
At the same time, Doré was supposed to solidify a completely revised relationship between administrative law and the Charter . It was supposed to be a reflection of the anti-Diceyan approach to administrative law, allowing administrative decision-makers to “infuse” Charter values in the context of their statutory context and expertise . Judicial review courts were not supposed to impose their understandings of constitutional law, their own tests, on administrative decision-makers.
I see this as yet another example where the Court has failed to clearly instruct lower courts and litigants. This is its modus operandi in administrative law. It fails to pick a lane and stay in it, and accordingly, it routinely says one thing and does another. Doré is no different—it counsels a merger of constitutional and administrative law, yet in practice it retains the classic approach it derided in Doré. Lower courts are, understandably, relying on the analysis with which they are more familiar. A half-hearted balancing approach which is unclear on what must be balanced is unhelpful.
I am firmly on the side of letting Doré die. Its problems are evident, and the reliance interests are minimal—especially given the movement in lower courts and Trinity Western. But whatever the Court does with the case, it should do so convincingly. Doré is (almost) dead, but it comes at the cost of predictability. Is this the price of good doctrine in Canada?