When Dunsmuir came out, I was in the middle of taking administrative law in law school. Our class had spent hours learning about “patent unreasonableness”. But when Dunsmuir abolished it, the professor was faced with a dilemma for the exam: forget patent unreasonableness or pretend that Dunsmuir never happened?
While our professor chose the latter, I imagine admin law professors hope the recent reconsideration of Dunsmuir cases in Bell/Vavilov/NFL (the “trilogy”) will be not be decided during the semester. While Dunsmuir itself appears to have had a shelf life of about a decade, Doré v Barreau du Quebec, 2012 SCC 12 is approaching the seven year itch. Doré, of course, changed how Courts decide whether government actors violate the Charter. Doré seems safe for now, even as the amici curiae in the trilogy wish to rework it. But given the lack of longevity to administrative law decisions and its many critics, there is an increasing sense that Doré could (or should) soon belong to the growing graveyard of administrative law jurisprudence.
But offering a eulogy would be premature. Instead, enough time has passed to conclude that, thus far, Doré and its progeny have disappointed based on the very implicit promises and rationale contained in Doré itself.
As many readers are aware, the 2012 decision in Doré abandoned Oakes’ formal multi-stage proportionality test for assessing whether government action and actors (i.e., tribunals and other government delegates) comply with the Charter. The Oakes test was the test used by the Supreme Court between the 1989 decision in Slaight and Multani in 2006. Doré has since been followed by the Court in Loyola (2015) and the twin TWU decisions (2018). Oakes still applies to reviewing the constitutionality of legislation.
Under an Oakes review, a Court first assesses whether a government decision limited the Charter in the first place. If so, it moves to the second step where the state has the onus to prove:
- the government’s objective is pressing and substantial;
- the decision is rationally connected to the objective(s);
- the decision minimally impairs the affected rights; and
- there is proportionality between the decision’s benefits and harmful effects.
For all of Oakes’ shortcomings, it was applied rather rigorously in the recent Canadian citizenship case and has been hailed by the UK Supreme Court as the “clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning”.
Doré explicitly abandoned Oakes’ formal two-step approach in favour of a global assessment of whether:
“given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (para. 57).
This loosely structured test is Doré’s “administrative law” approach to judicially reviewing government action. Whereas the state has the onus to justify itself at each stage of Oakes, everything is “put on the scales” at once under Doré’s “more flexible” approach (paras. 36-37).
Doré brought “Dunsmuir deference” to decision-makers’ decisions on Charter issues (paras. 36, 54-56; TWU, para. 79). According to Dunsmuir, deference in judicially reviewing government action means that “courts will give due consideration to the determinations of decision makers” (para. 49) in deciding whether a decision “falls within a range of possible, acceptable outcomes” on a standard of reasonableness (para. 47). In other words, a court will defer to a decision maker unless their decision is shown to be unreasonable and outside this acceptable range. The alternative standard, correctness, means a court will take its own independent analysis of a decision, as it does with an Oakes review, and substitute its own view.
Doré offered rationale and a number of promises to justify the break from Oakes. This is a scorecard of how they have subsequently turned out:
1.The Expertise of Decision-makers. The rationale in Doré for deferring to decision-makers on Charter issues is that, by virtue of their “expertise and specialization”, they will “generally” be in the best position to consider the Charter “on the specific facts of the case” (paras. 47, 54; TWU, para. 79 (“typically”). This suggests that some decisions don’t deserve deference. But this doesn’t appear to have held true.
One may have thought that the facts in TWU would challenge the supposed “distinct advantage that administrative bodies have in applying the Charter” (Doré, para. 48). That is because in TWU, the administrative body applying the Charter, the Law Society of BC (“LSBC”), made its decision to bar TWU graduates from practicing law solely because of a popular vote of its membership. This membership is what Chief Justice Bauman of the BC Court of Appeal facetiously referred to in oral argument as “the largest tribunal in British Columbia”. While this decision was under judicial review, the LSBC itself conceded in its written submissions and in oral argument before the BCCA that the membership effectively made the decision. Indeed, the referendum itself said the membership’s decision “will be binding and will be implemented by the Benchers”. The lower courts unsurprisingly found this to be fettering by the LSBC “abdicating” its statutory duties.
On this factual background, the dissenters in TWU, Justices Brown and Côté, sensibly stated that the “LSBC membership could never, through means of a referendum, engage in the balancing process required by Doré” (para. 298). However, the majority of the Supreme Court were forced to downplay the membership vote as being mere “guidance or support” (para. 50) in order to defer to LSBC’s “institutional expertise” (para. 50) and by extension the rationale for deference in Doré.
But what kind of expertise did the majority require of the LSBC to justify any deference to it? Surprisingly, the majority said the LSBC only had to be “alive to the [Charter] issues” (paras. 51-56). Being “alive” suggests, perhaps, that deference is deserved for decision-makers who don’t drop dead before rendering a decision.
In assessing the rationale for deference in Doré, one must critically consider: what “expertise” and “specialization” did the membership of the LSBC bring? Or the Benchers, who merely adopted the membership’s will? Remarkably, the majority in TWU still deferred to the LSBC in spite of the LSBC urging the Supreme Court of Canada not to defer to them and apply a correctness standard instead.
In sum, when the rationale for deference is absent – expertise, specialization, and proximity of the facts to the Charter – deference still apparently applies in a Doré review. It may be time to reconsider this.
2.Doctrinal Coherence. One justification for discarding the Oakes framework established in Slaight was that Doré would lay down a new, solid legal foundation on which to construct coherent doctrine (paras. 35-39). Doré itself said its administrative law approach was employed in cases such as Baker and TWU (2001).
If Doré’s goal was “to start from ground zero in building coherence in public law”, as the decision itself suggested (para. 34), the commentary on Doré cast significant doubt on its methodology and doctrine (calling E.T. v. Hamilton-Wentworth District School Board and Justice Stratas). Almost seven years later, we still don’t know the basics about applying Doré in practice. The majority of the Court has remained silent on a litany of criticisms of Doré (see point #4 below) – including ones made by members of the Court itself – having to do with the distinction between Charter values and Charter rights, the absence of the “prescribed by law” requirement in s. 1 of the Charter, and the identification of who bears the onus to prove proportionality under Doré. (an interesting fact is that the Attorney General of Canada argued in the lower level courts in BC that the LSBC decision could not pass the “prescribed by law” requirement).
And while Doré suggests a court defer to a decision-maker’s own identification of the relevant statutory objective against the Charter (paras. 55-57), that approach was not followed in Loyola and TWU. This departure has never been explained. The lack of clarity and consistency that Doré was supposed to remedy have caused new frustrations for lawyers and judges alike (again, see #4 below).
I will add two thoughts. First, a Doré review seems doctrinally flawed that a Court would defer to the state on whether the state has properly balanced the relevant Charter protections. Why should the state get the first crack in deciding whether its own actions violate the Charter? This deference gives the state a distinct advantage over Canadians whose rights are limited by effectively putting the onus on applicants to prove why the state is not owed deference (i.e., why it did not balance the Charter properly). This effectively reverses the onus in Oakes and deprives the Charter of its overarching purpose as a shield against the state.
One wonders whether there is a principled limit to this reasoning. If a government delegate is accorded deference to their decision, because of their “expertise and specialization” and familiarity with the Charter (Doré, para. 47), why should this not, in principle, extend to discretionary decisions of other government actors with expertise and specialization such as police officers or border agents whose actions are currently reviewed according to objective tests? What is the principled reason that they are not afforded deference when the Court decides whether a detention violates s. 9 of the Charter, or their search engages s. 8 of the Charter, which protects against “unreasonable” searches?
If the scenario seems absurd, consider that courts in BC have directly reviewed police decisions in issuing roadside prohibitions under Dunsmuir deference (!!). If a Charter issue arose in such a case, “Doré deference” to the police officer’s decision would presumably apply. In this way, Doré review could potentially erode Charter protections in contexts likely not anticipated by Doré.
Second, taking that dichotomy further, if legislative decisions by decision-makers are reviewed for Charter compliance under the test in Doré, as suggested by the majority in TWU (i.e., the LSBC benchers) (para. 54), what is the principled reason for utilizing Oakes, and not Doré, to review the constitutionality of legislation?
If the answer is that rules of general application like legislation and regulations should be assessed under the more stringent Oakes standard, this has problematic consequences for the way government operates. The existence of Doré review for government actions means the government has an incentive to structure their power to confer broad discretion to govern opaquely by action, not regulations, so that those actions are reviewed under the deferential Doré review, rather than with the more stringent justification demanded by Oakes. In other words, the mere existence of a Doré review provides an incentive for the state to provide its actors with Doré deference rather than an Oakes review (e.g., direct judicial review of the police issuing roadside prohibitions).
The different levels of Charter protection Canadians have against government actors means there is a hierarchy of rights protection depending on the identity of the state actor. It also means there are increasing ways for the state to exploit that hierarchy as there is little incentive for the state to govern transparently or decision-makers to provide reasons when it can deferentially operate under an administrative apparatus free from an Oakes review.
3.An administrative law approach to the Charter should prevail. This was the main promise of Doré: that Courts “embrace a richer conception of administrative law” by allowing a flexible approach that would be “nurtured” by the Charter (paras. 27-29, 37, 47).
Doré itself was criticised for failing to apply administrative law to critically engage in the reasons of the decision-maker. In Loyola, the Court moved back towards Oakes. It clarified that the Doré test incorporated the minimal impairment test (paras. 4, 41). In practice, however, the government in Loyola failed the pressing and substantial/rational connection stages in Oakes (without referring to Oakes) in concluding that the decision failed to advance the ERC Program’s objectives in any significant way (paras. 6, 68, 148, 159). The majority of the Court mystifyingly ignored applying Doré altogether in Saguenay, Justice Counsel, and Ktunaxa.
In TWU, and without citing a single case on the concept, the majority appeared to undermine the well-settled administrative law prohibition of fettering to achieve its result. The administrative law professor must wonder: what does fettering mean anymore in light of TWU? (If you are one such professor, I would be keen to hear your thoughts). On the other hand, the majority in TWU borrowed from some of its recent administrative law decisions, while ignoring others, to justify the LSBC’s failure to provide reasons and provide post-facto justifications for its decision.
And as noted by Mark Mancini, the simplicity of Doré was complicated by the subsequent decisions in Loyola, Ktunaxa,and TWU by introducing the threshold question of Oakes as to whether the Charter is limited in the first place. While this is a welcome development, the return of the two stage limitation/justification assessment is another shift toward Oakes (Doré, para. 29).
If practice makes perfect, the applications (or lack thereof) of Doré in Loyola, Saguenay, and TWU are underwhelming in terms of modelling an approach to judges and lawyers that infuses administrative law principles into its decisions. The more Doré is applied, the more it is applied in a complicated manner. The touted “flexibility” of Doré can be used to incorporate administrative law in theory, but it can also legitimize judicial preferences in practice.
4.Using Oakes for Administrative Law was Consistently Criticized. Doré justified abandoning Oakes because a few academics were “concerned” by Slaight, and academics were allegedly “consistently critical” of Multani, the last SCC decision that applied Oakes (paras. 27, 33-34).
By comparison to Multani, Doré’s critics are legion. In a similar six year time period, Doré has sustained an avalanche of academic criticism easily eclipsing Multani’s use of Oakes. Doré was mentioned unfavourably more than any other Supreme Court of Canada decision in Double Aspect’s “Twelve Days of Christmas” symposium (here, here, here, and here). Doré been the subject of surprisingly candid criticism from appellate court judges. In the twin TWU cases, four justices expressed concerns with Doré in response to TWU’s calls to fix Doré. Justices Brown and Côté offered the stinging criticism that Doré “betrays the promise of our Constitution” (para. 266).
To use a football analogy, will the Court continue to call seemingly ineffective passing plays when the crowd is screaming for them to run the ball? Perhaps not, but with each passing decision of the Court, Doré’s critics are growing louder.
Judged on its own terms, Doré is struggling to achieve its vision. This vision, however, comes at a cost to ordinary Canadians whose rights may be limited. Given the never-ending construction project that is administrative law in Canada, practitioners “are placed in an impossible situation”. The lack of clarity, varying simplicity, and unpredictability in a Doré review means lawyers are unable to effectively advise clients because they must speculate as to the possible outcome. Clients are left with uncertainty. If Doré stays on life-support, one wonders: who is being served by keeping Doré alive?