Discretionary administrative decisions and the Charter of Rights : Doré and determining the "proportionate" balance
University of British Columbia
Master of Laws - LLM
This thesis examines the uncertainty in Canadian public law arising from the Supreme Court of Canada’s decision in Doré v Barreau du Québec [Doré] regarding judicial review of rights-limiting administrative decisions. Prior to Doré, the courts applied differing approaches when reviewing the constitutionality of discretionary administrative decisions, vacillating between review under the Charter or an administrative law approach. With Doré, the Court has attempted to resolve the longstanding debate about the appropriate methodological approach to judicial review of administrative decisions for compliance with the Charter, holding that an administrative law approach should be applied. The “Doré approach” requires an assessment of whether the administrative decision reflects a proportionate balancing of the relevant Charter values with the statutory objectives. I analyze the Doré approach, with reference to the historical jurisprudence and academic literature. I suggest that a number of questions and uncertainties are raised by the Court’s lack of guidance on how this approach deals with some of the significant tensions in the relationship between administrative law and the Charter. In particular, the Doré approach does not guarantee that administrative decisions infringing on Charter rights and freedoms are subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (as required by section 1 of the Charter). I propose an analytical methodology for judicial review of rights-limiting administrative decisions that is carried out within an administrative law framework but incorporates the spirit of section 1 of the Charter (and the proportionality analysis adopted by the Court in R v Oakes). This approach builds on the Doré “proportionate balancing” approach to create a review framework that: 1. Provides greater assurance that rights-limiting administrative decisions will only be justified if the limit meets the rule of law principles underlying the section 1 “prescribed by law” requirement, and 2. Scrutinizes the decision in a more rigorous manner than the review undertaken in Doré. This recommended approach offers a more coherent and unified conception of the relationship between administrative law and the Charter, and better respects the requirements in section 1 of the Charter.
Attribution-NonCommercial-NoDerivatives 4.0 International
Law, Faculty of