#9166 - Charter - Administrative Law

Charter

Section 7 Framework: CH DPF

-a) Threshold: Applies when “life, liberty or security of the person” are impaired (s. 7)

-*NB: only directly invoke these if trying to challenge a specific statutory provision> if not, you get the same result re scope of PF under CL

-applies in narrower contexts than CL DPF but is more expansive pfjs encompass CL DPF, but the CL DPF is not constitutionalized (Singh)

> everyone “physically present in Canada and by virtue of such presence amenable to Canadian law” is entitled to s. 7 right (Singh)

-examples of s 7 values engaged:

• Where it involves action overseas, there must be a causal connection to the Cdn govt (Suresh):

  • Refoulement or prolonged/indefinite detention (Charkaoui)

• Serious state-imposed interference with psychological integrity (G(J): welfare authorities seized child)

• Deportation to face persecution (Singh) or significant risk of torture (Suresh)

• Delay caused by ODSP eligibility process such that it caused extreme hardship (Wareham)

-examples where s 7 not engaged:

• Reputational or psychological stress does not qualify unless it is extreme (Blencoe)

• Delay from an admin proceeding does not qualify unless it is extreme (Blencoe)

• Extended detention scheme if accompanied w regular review (Charkaoui)

-b) Content of CH DPF

• Where statutory scheme infringes the CH DPF, a ct may use the CH may strike statute and impose requirements (Suresh> use Baker factors)

• PFJs are flexible in their content, s 7 does not require a particular type of process but a fair process having regard to the nature of the proceedings and the interests at stake (Charkaoui)

  • CL informs content of duty once threshold is crossed: the greater the interests at stake, the greater the procedural protections (Suresh)

  • Encompasses the right to a fair hearing, specifically (Charkaoui):

    • An independent adjudicator

    • Right to know the case against you

    • The right to answer that case

  • Oral hearing is required where credibility is at issue (Singh)

  • Requires reasons (Suresh)

  • Encompasses disclosure, but not required if the material is a legal opinion or can be limited if the materials are sensitive for matters of national security

(Pritchard; Suresh; Charkaoui II)

• Limitations:

  • Doesn’t require state funded counsel (Christie)

  • weighing of stat objectives and individual’s rights should occur in s 1 only (Malmo Levine; Charkaoui)

c) s 1

• Security concerns shouldn’t be used to justify s 7 violations (Charkaoui)

• Courts very reluctant to uphold s. 7 violations under s. 1: that which violates pfjs very unlikely to survive Oakes test (G)(J))

  • Not minimally impairing if they are alternate approaches that would better balance stat objectives and individual’s rights (Charkaoui)

• Examples where violation not justified under s 1:

  • Singh: IRPA scheme which denied right to oral hearing where credibility at stake

  • Suresh: exercise of discretion (as opposed to legislation itself that provides discretion) resulting in sending refugees to face torture as the Minister failed to provide adequate safeguards and reasons

  • Charkaoui: security certificate scheme violates bc in camera, ex parte hearings violates right to a fair hearing as individual doesn’t get to respond to case

Standard of Review for Admin Bodies CH Decisions

Overview

-SCC has fluctuated inconsistently in regards to the standard of review for admin bodies CH decisions, in terms of:

-a) if s 1/Oakes should be used, or an admin law approach that incorporates CH values

-GVR Transport; Multani; Slaight: s 1 for acts of admin discretion

-Lake, Trinity Western, Chamberlain: admin law approach

-b) what standard of review should be used if using an admin law approach:

-Martin; Trilogy (Douglas/Kwantlen/Cuddy Chicks): correctness standard

-Chamberlain: reasonableness

-c) if only the impugned legislation is under review, or also the admin body’s decision,

and if these attract different standards of review

-Dore changed the legal landscape in that it clearly states that admin bodies decisions re exercises of discretion that engage the CH will be assessed on a reasonableness standard

-for laws of general application, use s 1

-however, it also leaves open some ambiguities and concerns

Dore Framework

1. Threshold: Application > Is it a discretionary admin decision? (Dore; Slaight)

a) Rule: Discretionary Decisions undergo a Reasonableness Analysis (Dore)

-s 1 only appropriate for a law or rules of general application

-for an admin decision that violates individual rights and is discretionary, the appropriate

approach is a reasonableness standard of review

b) Application: Distinguish if Decision is Discretionary (Slaight)

-i) determine whether disputed order was made pursuant to legislation that confers, implicitly or expressly, the power to infringe a CH right:

- Extradition Act: example of legislation that explicitly authorizes the infringement of a CH right (s 6: mobility)

-Controni: each extradition is a PF infringement, the Cr must show each case is justified

-yet, in Lake, although followed Controni in that extradition = PF infringement, refused to apply s 1 test to ministers decision to extradite > reasonableness standard conducted instead > Dore

- Little Sisters: statute gave express legislative authority and discretion to infringe rights

-ii) if the power to infringe comes from legislative authority, the law must undergo an s 1 analysis:

-constitutionality of rule assessed on a correctness standard

-onus under s 1 falls on the state

-*NB: if reviewing an admin bodies assessment of the constitutionality of a law, must undergo analysis from Martin: does it have jurisdiction to assess ? of law

-Little Sisters: law justified but discretion not

-dissent: legislation that infringes rights must contain procedural safeguards

-e.g. PHS: reviewed constitutionality of CDSA and ministerial discretion re refusal to grant an exemption for safe injection sites

-statute engaged s 7 but there was a safety valve re exemptions thus no violation as in accordance w pfjs

-discretion under statute: underwent s 1 analysis> failed

-NB: now under Dore, this would be subject to reasonableness

iii) if the legislation provides broad or imprecise discretion and the authority to infringe a CH right is not express, then the specific act of discretion itself will be subject to a reasonableness analysis (Dore)

-more deferential standard than above

-onus falls on litigant challenging decision

2. Defining Reasonableness in the Context of JR of Admin Bodies’ CH Decisions

a) Reasonableness defined:

-it is an assessment of proportionality:

-where a decision is disproportionate in its impairment, it is unreasonable

-where it is balanced bw stat objectives and CH right, it is reasonable

-if the outcome falls with a possible acceptable range of outcomes, then it merits deference

-if the decision maker has properly balanced CH rights w stat objectives in exercising its stat direction the decision will be reasonable

b) Rationale for applying reasonableness:

-admin discretion is bound by CH and presumed to adjudicate w regards to CH values (Slaight; CUPE; Baker)

-desire to empower tribunals to decide and adjudicate CH (CUPE; Conway)

-formulaic approach of Oakes might not work in admin law context:

-limit prescribed by law: doesn’t fit w discreton

-discretion doesn’t really fit “pressing and substantial objective” component

-definition of reasonableness in this context reflects “the spirit of Oakes:”

-JR hinges upon if there is a proper balance of the implementation of the stat purposes with CH rights

-thus this approach “reconciles the 2 regimes” while preserving their respective integrity

-in context of discretion, CH values are being applied to an individual decision and applied to a set of facts> which attracts deference (Baker; Suresh)

-decision maker is interpreting their own statute > expertise (Chamberlain)

-balancing of competing interests (Lake)

-it opens up a dialogue about appropriate use of control and discretion, rather than command and control relationship

3. Applying Reasonableness (Dore)

-assessed if whether the disciplinary decision was reasonable re D’s CH expressive rights> was it proportionate in restricting 2(b) in regards to its stat mandate that lawyers act w civility?

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