The rigamarole around the notwithstanding clause this week has me thinking about the reach of the Charter, and in particular, a case that will be heard by the SCC early next year: A.B. v Northwest Territories. While there are other issues in the case, at its heart is a stark proposition: is it required for a government decision-maker to consider “Charter values” (or what I call “vibes”) even where it is accepted that a right is not engaged on the facts? One might think—as I do—that the answer to this question is “no.”
But others disagree, and with some precedent in support, and so the Supreme Court will soon hear this case. A.B. involves s.23 of the Charter, which provides the following:
Language of instruction
23. (1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,
have the right to have their children receive primary and secondary school instruction in that language in that province.
Continuity of language instruction
(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.
Application where numbers warrant
(3) The right of citizens of Canada under sections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province;
(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and
(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.
As the NWTCA pointed out in the decision being appealed to the SCC, section 23, unlike some other constitutional rights, is rather precise: it delineates who is eligible to enjoy the constitutional right, and so its text inevitably “draws lines of eligibility” that will mean that there will be some “hard cases” that fall on either side of these lines [9]. This is a consequence of the finely-wrought s.23, which could have been phrased more broadly or generously, but isn’t.
As the NWTCA pointed out, this provision requires governments “to provide minority language education to those who have a right to it” [6] but “the government does have the discretion to allow the non-section 23 children to attend the minority language schools” [9]. In the NWT, at the time of the impugned decisions, this process was governed by a Ministerial Directive (and, of course, supplemented by ministerial residual discretion) , which provided that a “limited number” of non-section 23 children could be admitted [10].
Under this process, it was accepted that the A.B. family did not qualify under s.23 [10, 24]. And yet they argued that the Minister, in exercising her discretion and implementing the Directive, were required to consider the values underlying s.23 [28]. The chambers judge named some of the interests that would need to be considered by the Minister under the values-analysis:
…the needs of the linguistic minority and the need to foster the preservation and development of this community, in the exercise of her power over the admission of non-rights holders to minority language schools [28].
At the NWTCA, the majority of the Court rejected this contention. It held that this case did not implicate constitutional rights [59]. Rather, the essence of the claim was that the Minister should have considered values underpinning s.23 in considering whether the Minister properly exercised her discretion not to admit the non-rights holders. But as the Court stated, “[t]he obligations of the provinces and territories to observe and respect the Charter are collateral to the issues that were before the chambers judge” [59]. The point of the majority holding is simple: Charter values cannot be used to extend the protections of the Charter to those who otherwise are not eligible for the specific protections at issue. Rowbotham JA concurred, but would have required the Minister to consider s.23 [136].
In my view, the majority judgment cogently outlines a problem with Charter values—because of the lack of guidance on their scope and application, they can easily metastasize to expand the Charter in unexpected ways. This metastasis can occur in three ways. First, because Charter values are necessarily stated at a high level of abstraction, they can distort the interests protected by a purposive and textual interpretation of specific Charter rights (a concern raised by Rowe J in TWU). Second, a court can align a Charter value with a statutory objective, however broadly-stated, and in the face of a protected right, claim that an administrator can promote that Charter-sanctified statutory objective (as the majority pointed out in TWU, and as explained by Edward Cottrill here). This means that a state objective that otherwise may be directly contrary to an actually-protected right is given the imprimatur of constitutional benediction—that old chestnut. Third, Charter values can be used to “supplement” purported “deficiencies” or perceived lacunae in the Charter text. Because each Charter right delineates and narrows the interests that it protects, it is possible for a Charter value to come into play, even where an individual does not hold the benefit of the right.
A.B. presents this third situation. Like the other cases where Charter values are at play, there is arguably a distortion of the actually-existing Constitution. It would seem odd for there to be a duty on a Minister to consider the Charter where there is no one capable of claiming the right. This means that there is a normative constraint on the decision-maker to consider values (perhaps pale imitations of rights) that may not actually at issue in the case. Should this appear odd, it isn’t necessarily so to those who support Charter values. In Loyola, for example, the plurality seemed to draw an equality between rights and values, such that each are protections that can be claimed in any given case (see Loyola, at para 35). And as one author suggests, perhaps this means that even where a claimant does not have an official Charter right to claim “they ought to have had the protection of Charter values” (see here, at 79).
The key word here is “ought.” What s.23 ought to protect, in the view of one person, is evidently different than the value choices embedded in that provision. I worry, specifically, about the use of Charter values to defeat the choices made in the Charter on this contentious issue. It distorts this Charter—as opposed to some other Charter of values—to ignore the specific choices made in the text, and to judicially-administer an ever-changing constitution of values, which can be raised where the actual Charter does not apply. The creation of two Charters must be avoided, and this should mean putting an end to expansive Charter values arguments that require judicial extension of existing rights.
There are a number of counter-arguments that could be advanced: some relating to administrative law precedent, and some to the specific context of s.23. It is true that the Supreme Court has referred to an administrative duty to consider Charter values. In Baker, the Court noted that “discretion must be exercised in accordance with the boundaries imposed by the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter” (Baker, at para 56). In Doré, the Court noted that administrative decisions are “always required to consider fundamental values” (Doré, at para 35). Even in the NWTCA decision, the Court claims that it is a “truism that public decision makers should always have regard to fundamental societal values, such as liberty, dignity, and equality” [57].
Putting aside that these values may already map onto existing Charter rights, or are otherwise amorphous and contested (they should not lead inexorably to some pre-determined outcome), I do not think these precedents can be marshalled in favour of the expansive proposition that Charter values are independent constraints on administrative discretion. It is obviously true that a decision-maker is required to consider Charter rights when those rights are argued. So, post-Vavilov, courts have found that when claimants do not raise Charter arguments before a decision-maker or only briefly refer to them, there is no concomitant duty on a decision-maker to engage in a Charter analysis (see e.g. Canada (Attorney General) v Robinson, 2022 FCA 59 at para 28). It’s only a small skip to the next step: of course administrators have a duty to consider the Charter, when a right is claimed, but values in the ether should not expand the scope of the Charter to situations where it “ought” to apply.
More specifically, and for good reason, recent precedent of the SCC clamps down on these sorts of arguments: specifically City of Toronto and Quebec Inc. While clarifying that the dominant approach to Charter interpretation is purposive in nature, the Court has finally confirmed that the text remains the starting point to all Charter interpretation. Unwritten principles and values may form a part of doctrinal construction, or construing the scope of a right—but these values must be properly-scoped, and they cannot be used to distort, undershoot, or overshoot the actual rights at hand. This is common sense in many ways, but the simple conclusions from these cases have a great deal of relevance for the continued use of Charter values.
It could also be argued that the specific context of s.23 would permit non-rights holders to act on behalf of the “entire Francophone community” [60]. In this way, the fact that the right is, in part, collective might signal that the Minister should consider s.23 “values.” I think this is wrong. To permit this would be to allow non-rights holders to “piggyback” on those who enjoy the right in question [60]. The collective aspect of a right does not require its extension in this fashion.
People who defend the Charter should be interested in ensuring its scope is limited to the sorts of interests it was meant to protect. The situation we have, these days, with the review of administrative decisions implicating constitutional rights is unsustainable. Most of it distorts orthodox constitutionalism. We have Doré , which can counsel weak review in particular cases when rights are actually advanced; and when rights are not advanced, A.B. brings forward the contention that the Charter applies nonetheless. We have a Charter of Values applying strongly where it shouldn’t, and a Charter of Rights being diluted by a deferential standard of review. This seems odd.
Double Aspect 