{"id":2570,"date":"2017-11-15T22:27:50","date_gmt":"2017-11-15T22:27:50","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2570"},"modified":"2017-11-15T22:30:21","modified_gmt":"2017-11-15T22:30:21","slug":"dores-demise","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/dores-demise\/","title":{"rendered":"Dor\u00e9\u2019s Demise?"},"content":{"rendered":"
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In my last post on Double Aspect<\/a>, I wrote about the religious freedom issues addressed in the Supreme Court\u2019s recent decision in\u00a0Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations)<\/em>, 2017 SCC 54<\/a>, which concerned the constitutionality of a ministerial decision to allow development on land considered sacred by an Aboriginal nation. I want to return to Ktunaxa<\/em>, this time to address a different issue that has, so far as I know, attracted relatively little attention: that of the standard of review of the Minister\u2019s decision. On this point, the majority opinion (by the Chief Justice and Justice Rowe) and the concurrence (by Justice Moldaver) illustrate the ongoing failure of the Rule of Law in the Supreme Court\u2019s jurisprudence.<\/p>\n

Let\u2019s start with a bit of history. In\u00a0Dor\u00e9 v Barreau du Qu\u00e9bec<\/em>, 2012 SCC 12, [2012] 1 SCR 395<\/a>, Justice Abella, for writing for the unanimous Supreme Court, articulated a framework \u201cfor reviewing discretionary administrative decisions that implicate Charter values\u201d. [34] Such review would be deferential, conducted on a reasonableness standard, much like judicial review of most other legal issues, in recognition of administrative decision-makers\u2019 expertise. This approach has been heavily criticized, not least by Paul Daly<\/a> and\u00a0Maxime St-Hilaire<\/a>, but the Court has never overtly resiled from it. However, the application of Dor\u00e9<\/em>\u00a0has been uneven, to say the least.<\/p>\n

In\u00a0Loyola High School v Quebec (Attorney General)<\/em>, 2015 SCC 12, [2015] 1 SCR 613<\/a>, the majority opinion, written by Justice Abella, applied the Dor\u00e9<\/em> framework. However, as both Paul Daly<\/a> and yours truly<\/a> have suggested, there is little to choose between the way it does so and a more traditional proportionality analysis. Meanwhile, a partial concurrence by the Chief Justice and Justice Moldaver eschewed the Dor\u00e9<\/em> approach altogether. Just days later, in Mouvement la\u00efque qu\u00e9b\u00e9cois v. Saguenay (City)<\/em>, 2015 SCC 16, [2015] 2 SCR 3<\/a>, a majority of the Supreme Court took yet another approach, holding that the relationship between the freedom of religion, religious neutrality, and prayer by government officials was a question of central importance to the legal system and therefore reviewable on a correctness standard. Justice Gascon, writing for the majority, did offer an explanation for why this case was different, though one that Paul Daly criticized as confused and confusing<\/a>. Justice Abella was also unimpressed; she concurred, but would have reviewed the decision of Qu\u00e9bec\u2019s Human Rights Tribunal on a reasonableness standard. Neither she nor Justice Gascon even mentioned Dor\u00e9<\/em>.<\/p>\n

Back, now, to Ktunaxa<\/em>. Again, the majority opinion does not so much as mention Dor\u00e9<\/em>. What is more, it does not even raise, never mind address, the issue of the standard of review. After describing the background and the history of the case, and outlining the Ktunaxa\u2019s religious freedom claim, it proceeds to discuss the Charter<\/em> right to freedom of religion and to address and reject the claim, without referring, much less deferring, to the Minister\u2019s decision at all.\u00a0It is worth noting that\u00a0the Supreme Court\u2019s next decision, Association of Justice Counsel v. Canada (Attorney General)<\/em>, 2017 SCC 55<\/a>, is the same in this regard. One of the issues raised there was whether a policy requiring government lawyers to be available, several weeks a year, to handle urgent matters outside of regular working hours was an infringement of their right to liberty under section 7 of the Charter<\/em>. A labour arbitrator said that it was, but the Court (unanimous on this point) easily rejected that view, again without addressing either the question of the standard of review or the administrative decision-maker\u2019s reasoning (though the majority did discuss it at length on the other issue in the case, which concerned the interpretation of a collective agreement).<\/p>\n

Justice Moldaver\u2019s concurrence in Ktunaxa<\/em> is also worth mentioning here. He too starts out with his own discussion of the scope of religious freedom under the Charter, criticizes the majority\u2019s view on it, and insists that the Minister\u2019s decision was a prima facie<\/em> infringement of that right. And then, Justice Moldaver turns to\u2026 the Dor\u00e9<\/em> framework (citing the majority opinion in Loyola<\/em> for the proposition that it is \u201cthe applicable framework for assessing whether the Minister reasonably exercised his statutory discretion in accordance with the \u2026 Charter<\/em>\u201c. [136] Justice Moldaver explains why he thinks the Minister considered the Ktunaxa\u2019s religious rights, and why his decision proportionately balanced these rights with the applicable statutory objective, paying fairly close attention to the minister\u2019s reasoning.<\/p>\n

So what is going on? Prof. Daly seems to think that not much is<\/a>, but I\u2019m not so sure. Without telling anyone, the Supreme Court might have killed off, or at least curtailed, Dor\u00e9<\/em>. Ktunaxa<\/em> and Justice Counsel<\/em> seem to suggest that, at least at the stage of defining the scope of a Charter<\/em> right, Dor\u00e9<\/em> is not the applicable framework, and indeed no deference, or even attention, is due to an administrative decision-maker\u2019s reasoning. Now, I\u2019m no fan of Dor\u00e9<\/em>, and would be glad to know it\u2019s dead and buried \u2015 but if the Supreme Court has decided to get rid of it, that seems like a pretty big deal, and it should have told us. As things stand, for all we know, the Court might re-embrace Dor\u00e9<\/em> in the next case and pretend that Ktunaxa<\/em> and Justice Counsel<\/em> never happened, just as in those cases it seems to pretend that Dor\u00e9<\/em>, or at least\u00a0Saguenay<\/em>, never happened.<\/p>\n

Moreover, there is an intermediate possibility, suggested by Justice Moldaver\u2019s concurrence in Ktunaxa<\/em>\u00a0\u2015 though of course we have no idea what the majority of the Court thinks about it, since it does not comment on this, or indeed any other, aspect of Justice Moldaver\u2019s reasons. Perhaps, while the definition of Charter<\/em> rights, as opposed to the justifiability of infringements under section 1, is a matter for the courts, while the justifiability of infringements is still to be reviewed by applying the Dor\u00e9<\/em> framework, perhaps as modified, if modified it was, in Loyola<\/em>. This is not a crazy approach (which isn\u2019t to say that I like even this diluted version of Dor\u00e9<\/em>). One could argue that the scope of Charter<\/em> rights is necessarily a question of central importance to the legal system on which administrative decision-makers, even otherwise expert ones like labour arbitrators, are not in a privileged position vis-\u00e0-vis the courts, while whether a particular restriction to a right is permissible is an issue that is both less important and more bound up with a particular decision-maker\u2019s expertise.<\/p>\n

Crazy or not, I don\u2019t think this approach is what\u00a0Dor\u00e9<\/em>\u00a0stands for. As I read it, Dor\u00e9<\/em> meant to move away from the two-stage Charter<\/em> review with prima facie<\/em> infringement and justification, in favour of a less structured, more global assessment. This is presumably why Justice Abella persistently spoke of Charter<\/em> \u201cvalues\u201d instead of rights. Besides, at least one of the cases that Justice Abella invoked as supporting the proposition that discretionary administrative decisions engaging these \u201cvalues\u201d had to be reviewed on a reasonableness standard was a section 7 case, and in such cases the important questions typically (although, as we now know, not quite<\/a> always) have to do with the definition of the right, not with its limitation under section 1. There just isn\u2019t any indication in Dor\u00e9<\/em> that Justice Abella or her colleagues meant to confine it to the more limited role that it plays in Justice Moldaver\u2019s Ktunaxa<\/em> concurrence.<\/p>\n

At the very least, then, the Supreme Court may have substantially modified Dor\u00e9<\/em>. Perhaps it has decided not to follow it anymore. But, to repeat, the Court has not told us so. This is problematic. Indeed, I think the Court is guilty of a serious Rule of Law failure. The Rule of Law requires law to be stable \u2015 though not unchanging, to be sure \u2015 yet the law on the standard of review of administrative decisions involving the Charter has now changed at least three, maybe four (depending on how to count Loyola<\/em>) times in less than six years. The Rule of Law also requires, I think, that the fact of legal change be transparent (this is a function of the generally recognized requirement that law must be public). This is not always easy to ensure in the case of law being articulated and re-articulated by courts in the process of adjudication, but at least when a court knows that it is disregarding a relevant precedent or changing its approach to a type of case, it ought to be able to say so. The Supreme Court did so in Saguenay<\/em> \u2015 but not in Ktunaxa<\/em> and Justice Counsel<\/em>.<\/p>\n

Or, look at this another way. In Dunsmuir v New Brunswick<\/em>, 2008 SCC 9, [2008] 1 SCR 190<\/a>, the Supreme Court famously spoke of the importance of \u201cthe existence of justification, transparency and intelligibility within the decision-making process\u201d. [47] That was by way of defining the notion of reasonableness in administrative law (itself a requirement of the Rule of Law), but you\u2019d think that the courts should at least be held to as high a standard as administrative tribunals. Well, I\u2019d say that it\u2019s not easy to see much by way of justification, transparency, or intelligibility within the process by which the Supreme Court determines the standard of review of administrative decisions involving the Charter<\/em>\u00a0these days.<\/p>\n

One last point. Justice Stratas links<\/a> the doctrinal uncertainty that bedevils Canadian administrative law with turnover on the Supreme Court. I\u2019m sure that this is a part of the story \u2015 but Ktunaxa<\/em> suggests that it is only a part. It\u2019s not just that judges retire and are replaced by others who don\u2019t agree with them. They don\u2019t even stick to one approach while they are on the Court. Justice Abella wrote Dor\u00e9<\/em> and defended deferential review in Saguenay<\/em>, but she signed on to the majority opinion arguably ignoring it in Ktunaxa<\/em>. Justice Moldaver co-wrote the partial concurrence in Loyola<\/em> that effectively rejected Dor\u00e9<\/em>, but in Ktunaxa<\/em> he enthusiastically applied it, albeit not in full. (To be sure, there is something to be said for a judge who accepts having been outvoted on a particular issue and falls in line with the majority. But given the overall uncertainty of the law in this area, it might not be the best place to demonstrate one\u2019s team spirit.) Given this individual inconstancy, it is no surprise that the Supreme Court as a whole is lurching from one approach to another without anything to stop it.<\/p>\n

Given the lack of clarity from the Supreme Court about what exactly it was doing to standard of review analysis in Ktunaxa<\/em>\u00a0and Justice<\/em>Counsel<\/em>, we will have to wait to find out whether these case are just aberrations or the start of a new trend. It is at least possible, however, that they mean that Dor\u00e9<\/em> is, in whole or in part, no longer good law. I\u2019d offer three cheers for that result, but must instead lament the lack of clarity and transparency with which it has \u2015 unless it has not \u2015 been reached.<\/p>\n<\/div>\n

 <\/p>\n

This was originally published<\/a> on Double Aspect, Professor Sirota’s award-winning blog.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

In my last post on Double Aspect, I wrote about the religious freedom issues addressed in the Supreme Court\u2019s recent decision in\u00a0Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which concerned the constitutionality of a ministerial decision to allow development on land considered sacred by an Aboriginal nation. I …<\/p>\n","protected":false},"author":1256,"featured_media":1571,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[35,34],"tags":[264,107,274,265,414,330,266,415,416,273,64],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2570"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/1256"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=2570"}],"version-history":[{"count":3,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2570\/revisions"}],"predecessor-version":[{"id":2573,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2570\/revisions\/2573"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1571"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=2570"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=2570"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=2570"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}