Yesterday, I wrote about why Doré was under stress in the aftermath of Vavilov. Today, I write about a new case out of the Court of Appeal for Ontario (per Sharpe JA) that demonstrates why Vavilov means that Doré is sitting in a tense situation. While Ferrier should not be taken as the death knell for Doré—or even an indication of such—it is an indication of the tension that Vavilov arguably introduced into the world of Doré.
In Canadian Broadcasting Corp v Ferrier, the question involved “the openness of police board hearings” . Under the Police Services Act, s.35(4), subject to certain exceptions, “police services board hearings are presumptively open to the public” . In other words, section 35(4) sets out the test for whether a hearing should be closed. In this case, the relevant decision-maker decided that the hearing should be closed. The CBC and others argued that the decision-maker “failed to pay adequate attention to the s.2(b) Charter right to freedom of expression by failing to require an open hearing” . Specifically, the applicants argued that the so-called Dagenais/Mentuck test applied to the case: “[t]his test applies to discretionary decisions limiting freedom of the press in relation to court proceedings” . The decision-maker, though, rejected the application of this test because (1) Dagenais/Mentuck apparently only applies to situations in the courtroom and (2) the relevant statute (s.35(4)) prescribed the proper test for determining whether to hold a closed hearing, and that statutory test ousted the consideration of Dagenais/Mentuck.
In addressing the standard of review, the Court was in an awkward position, because “[t]his appeal had been argued and a complete draft of these reasons had been written before the Supreme Court released its decision in [Vavilov]” . Nonetheless, the Court went on to assess the standard of review under the Vavilov framework.
The main question in determining the standard of review was the proper decision under review, and the authority under which the decision was made. Sharpe JA concluded that the relevant decision was whether the Dagenais/Mentuck standard applied [32-33]. In other words, the relevant decision under review was the decision-maker’s refusal to apply the Dagenais/Mentuck test in view of the s.35(4) statutory test. To Sharpe JA, this was a decision reviewable on a correctness standard . In drawing this conclusion, Sharpe JA drew a distinction (on standard of review) between cases where a Charter right was considered by a decision-maker and cases (as here) where the Charter right was expressly not considered:
 If the Charter rights are considered by the administrative decision maker, the standard of reasonableness will ordinarily apply.
 On the other hand, the refusal or failure to consider an applicable Charter right should, in my opinion, attract a correctness standard of review. As the Supreme Court explained in Dunsmuir, at para. 60, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,  3 S.C.R. 77, at para. 62: “where the question at issue is one of general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’ … uniform and consistent” answers are required. See also Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53,  2 S.C.R. 555, at paras. 20-21. This is confirmed by Vavilov, at para. 17: “[T]he presumption of reasonableness review will be rebutted…where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies”.
 The s. 2(b) Charter right to freedom of expression and freedom of the press relied upon by the appellants is both a matter of central importance to the legal system and a constitutional question.
In other words, Sharpe JA’s reasoning is that decisions whether to consider Charter rights at all are reviewable on a correctness standard, because such decisions are both constitutional questions and questions of central importance to the legal system, under the Vavilov framework. But once an administrator has considered Charter rights, the consideration of those rights are subject to a reasonableness standard.
Two things are notable about this distinction, taking into account pre-Vavilov precedent. First, prior to Vavilov, the decision of whether Charter rights had to be considered on the facts was not prescribed a specific standard of review by the Supreme Court, and otherwise was subject to a reasonableness standard in the Federal Courts. In Singh, for example, the Federal Court of Appeal was asked to determine whether s.110(4) of the Immigration and Refugee Protection Act [IRPA], which prescribes the conditions under which new evidence can be admitted in an appeal to the Refugee Appeal Division [RAD] exhaustively prescribed the conditions under which evidence could be admitted. An intervenor argued, for example, that “the RAD had to go beyond the requirements set out in s.110(4) and was obligated to proceed with a [Doré analysis].” . However, the Court concluded (1) that s.110(4) exhaustively set out the conditions under which new evidence could be admitted, vitiating the need for a Doré analysis  and (2) even taking account of the fact that this argument was made, the Court ultimately concluded that the interpretation of a provision such as s.110(4) is reviewable on a standard of reasonableness . This is because, among other things, the question was “not a question of law of central importance to the legal system as a whole….
It is true, as Professor Daly points out on Twitter, that Sharpe JA’s approach is substantially similar to the approach adopted by the Supreme Court with respect to the duty to consult, as noted in Rio Tinto. There, a distinction was drawn between cases where the decision-maker decides whether it must consider the duty to consult (reviewable on a correctness standard) and cases where the decision-maker has consulted and it is up to the court to assess the adequacy of the consultation (reviewed on a reasonableness standard). More broadly, the distinction here—similar to the one drawn by Sharpe JA—is based on a traditional sort of test for standard of review: questions of law (existence of legal duty) are reviewable on a correctness standard; questions of mixed fact and law are reviewable on a reasonableness standard.
But the analogy to duty to consult is not entirely convincing. For one, in some cases, a duty to consult may not need to be considered by an administrative decision-maker—since the enabling statute may not mandate it (see Rio Tinto, at para 67). But Doré speaks in far more reaching terms: “Rather, administrative decisions are always required to consider fundamental values” (Doré, at para 35, emphasis in original). Following this line of thinking, Doré and its progeny have not adopted the distinction between power to consider a fundamental right and the consideration of that right, for the purposes of the standard of review (though I note Moldaver J’s reasons in Ktunaxa as approaching this bifurcated analysis). As noted above, in Singh, whether a decision-maker must address the Charter is a matter of statutory interpretation, normally reviewable on the standard of reasonableness (see also Deri, at the Federal Court, on this note).
This distinction, then, in the Charter context is not common. Indeed, Sharpe JA seems to imply that Vavilov broadened the categories of cases in which correctness review would apply. The distinction drawn by Sharpe JA seems to give broader effect to the Dunsmuir correctness categories of “central questions” and “constitutional issues.” Take the central questions category. Following Singh, the question of whether a statute ousts the need to consider judicially-constructed tests was not a “central question” of importance to the legal system. But now, given Vavilov’s comments on the Rule of Law and the need for determinate final answers on important issues of legal interpretation (Vavilov, at para 53), it appears that there is extra grist for the mill for judges to expand the scope of the category, despite the Vavilov majority’s warnings otherwise (see Vavilov, para 61). Moreover, on the scope of constitutional questions, and on Doré’s own holding, a distinction was not drawn between cases where a Charter argument was considered versus cases where they were not considered but should have been. The Court has never explicitly endorsed this proposition with reference to Charter rights. Doré, instead, simply says that a decision which balances the Charter value with the statutory objective is reasonable (Doré, at para 58). Ipso facto, a decision which does not will be unreasonable, and so a decision that fails to even take account of a Charter value will be unreasonable (for an example, see Abdi, at para 30 ). But this was not a question of correctness, at least on Doré’s standard. Sharpe JA takes a different approach, relying on Vavilov.
One could make a convincing argument, then, that Vavilov changes the pre-Vavilov state of affairs as it applies to Doré and other categories of correctness review. In other words, Ferrier eats into Doré’s domain.
That is one point, in itself. But another is that, in my view, Sharpe JA does not take the point far enough, and in failing to do so, creates a distinction that is unworkable. In truth, the distinction between cases where Charter rights were considered and those where they were not is not a strong one on which to rest a difference in the standard of review. This is because of what Vavilov says at paras 55, 57:
Questions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982, and other constitutional matters require a final and determinate answer from the courts. Therefore, the standard of correctness must continue to be applied in reviewing such questions: Dunsmuir, para. 58; Westcoast Energy Inc. v. Canada (National Energy Board), 1998 CanLII 813 (SCC),  1 S.C.R. 322.
The constitutional authority to act must have determinate, defined and consistent limits, which necessitates the application of the correctness standard.
In other words, “the constitutional authority to act”—whether Charter values are considered or not—necessitates the application of the correctness standard. More broadly, the application of the correctness standard in these circumstances “respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on question for which the rule of law requires consistency and for which a final and determinate answer is necessary” (Vavilov, at para 53). In my view, this is true when a court analyzes whether a decision maker was required to consider Charter rights, and in cases where the decision-maker actually analyzed the Charter rights. In both cases, there is a substantial constitutional component to the analysis which implicates the need for the court to have the final say on the law: the court is required in both cases to assess the application and scope of constitutional rights. Even when considered in respect of facts or proportionality analysis, a court is still required to construe the scope of constitutional rights.
Some might argue with my position here. For example, as I mentioned in my previous post, Vavilov explicitly does not overturn Doré, and also does not explicitly mention questions of the “Charter” falling within the scope of its comments on “constitutional questions.” But it would be hard to distinguish between these cases. In other words, what is the compelling justification to treat Charter cases separately from all other questions of constitutional law, and going a step further, what is the justification for distinguishing cases where the Charter was considered versus where it was not? Whie one might say that the factual component changes things, in both cases, involving considering whether Charter values arise because of a relationship to a statute and cases where Charter values were considered, it is the court’s task to delineate the scope of constitutional rights. This is true in both the abstract and as applied to proportionality analysis. If this is true, the distinction, then, falls apart.
Ferrier, then, is an interesting case study in how Vavilov interacts with Doré. And at least on first blush, the interaction is tense.