In Defence of Charter Values

It seems, after Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (TWU v. LSBC), and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 (TWU v. LSUC) (together TWU), everyone is ganging up on Charter Values. While it was contentious in some quarters from the outset, these days, its supporters are hard to find. Chief Justice McLachlin declared ominously in her concurring reasons that, “the framework’s contours continue to elicit comment from scholars and judges.” (TWU v. LSBC, para 111). Justice Rowe, also concurring, under the heading “The Problem with Charter Values” observed, “While Doré was intended to clarify the relationship between the Charter and administrative action, its reliance on values rather than rights has muddled the adjudication of Charter claims in the administrative context.” (TWU v. LSBC, para 166) The dissenters in TWU perhaps capture the critical zeitgeist best when they lamented Charter Values as “troubling” (para. 306), “highly questionable” (para. 307), “amorphous” and undefined” (para. 309) and “entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so.” (para. 308)

Many of those expressing these concerns seem to have short memories. For them, Charter Values seems to be a solution in search of a problem. For those who viewed the pre-Doré framework as ill-suited to the context of administrative discretion, and inaccessible to many affected by discretionary decisions, Charter Values was (and is) a solution, even if one in need of continuing development. Charter Values represents a promising alternative to a constitutional framework which was confusing and ineffective. When it comes to improving legal accountability over administrative discretion, we should never let the unattainably perfect be the enemy of the better we can build and improve.

So, how did we get here? The Charter Values framework was introduced by the Supreme Court of Canada in Doré v. Barreau du Québec, 2012 SCC 12. The framework arises when an exercise of administrative or ministerial discretion is challenged on judicial review. The Charter Values framework calls for a proportionate balancing between the statutory goals underlying an exercise of administrative discretion and any inconsistency between that exercise of discretion with Charter Values. While the Dunsmuir standard of review framework establishes that the where administrative decision-makers apply constitutional authority, they will not be shown deference, the balancing of Charter Values is reviewed on a standard of reasonableness. Deference flows from the fact that the exercise of discretion does not have a single, correct answer. Indeed, the real promise of the Charter Values approach is not just that it will inform the judicial review of discretionary administrative decision-making, but that it will enhance that administrative decision-making culture itself.

The indeterminacy of Charter Values, together with confusion as to whether it is an administrative law or constitutional law framework, have combined to lead to criticism of the Court’s approach to Charter Values from all sides. For those who want more protection for those subject to discretion, the Charter Values framework has been criticized for watering down Charter rights, leading to less effective protections for vulnerable people. For those who believe Courts are already too muscular when it comes to Charter rights, the Charter Values framework appears to invite even greater judicial reach, subjectivity and activism from the bench. In my view, these critiques are largely misplaced.

Indeterminacy is a feature of novelty. The duty of fairness, when its application was expanded from just “quasi-judicial” state actors to a diverse array of decision-makers (by a razor-thin majority in Nicholson v. Haldimand-Norfolk Regional Police Commissioners, [1979] 1 S.C.R. 311), similar anxiety resulted. At the time, many wondered how such a watered down, amorphous and shifting legal standard could ever be coherently applied to the diversity of administrative decision-makers? A generation later, fairness stands as a settled and largely successful template for the accountability of decision-makers throughout the administrative state. Who is to say Charter Values will not follow an analogous path, as it is revised and adapted through repeated application and reflection? And, there is little in the structure of Charter Values analysis to suggest it will lead either to lesser protections for the vulnerable or to greater judicial activism. Where the Charter would have applied pre-Doré, Charter Values usually will lead to a similar result. In other words, it is hard to imagine a violation of a Charter right that cannot be justified as reasonable under the Oakes test that wouldn’t also be quashed as unreasonable under the Charter Values framework. The Charter Values framework, however, applies more broadly. Finally, the Court already has been exploring the contours of Charter Values in other settings (e.g. interpretations of the common law), so the concern that the Court is flying blind through uncharted terrain also may be overblown.

Much is made about the supposed shifting burden of proof under Charter Values – as the justification of a Charter Values infringement does not lie with the state as is the case under a conventional Oakes analysis under the Charter. By the same token, however, there are no procedural hurdles to raising Charter Values (or to the Court considering such issues even the parties have not raised them) as compared to Charter litigation (where a Notice of Constitutional Question needs to be provided to the Crown, in addition to other procedural dynamics which attach to a Charter challenge). Additionally, a range of statutes now preclude certain administrative tribunals from hearing and applying the Charter, but these statutory bars cannot immunize a tribunal from considering Charter Values, as these duties attach to the very grant of statutory discretion under statutes in the first place, and so Charter Values are accessible across administrative decision-making contexts.

My concern with the current state of the Charter Values framework is a different one entirely, and relates to the consistency of its application. In Loyola High School v. Quebec (Attorney General), 2015 SCC 12, for example, while the majority first applied the Doré framework, three justices reached the same result through an application of a Charter analysis without any explanation as to why they chose not to apply Charter Values. More recently, in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, the majority did not discuss the application of Charter Values at all, notwithstanding the decision at issue was an exercise of ministerial discretion to issue a permit for development (an omission highlighted by the concurring minority in Ktunaxa who did apply Charter Values, concluding that the Minister’s decision reflected a proportionate balancing between the Ktunaxa’s s. 2 (a) Charter right and the Minister’s statutory objectives: to administer Crown land and dispose of it in the public interest). In Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, the Supreme Court considered a decision of an arbitrator ruling on a directive from the Department of Justice changing the shift work structure for federal lawyers. The union representing federal lawyers believed the directive violated their section 7 Charter rights. While the underlying action in this case was an exercise of discretionary authority, none of the judges of the Court even mention the possible application of Charter Values, or why this exercise of discretion differs from the discretion at issue in Loyola and Doré.

As important as clarity on the application of Charter Values is the coherence of the framework. In Trinity Western, McLachlin C.J. appears to conflate the tests altogether, applying an Oakes s.1 Charter test and simply calling it a Charter Values test. The majority in Trinity Western, at least, stayed truer to the language (and the deferential reasonableness standard), though their tone was decidedly defensive. For example, in the LSUC case, the majority summarized the framework as follows: “Simply put, a decision that has a disproportionate impact on Charter rights is not reasonable.” (para. 35). Shifting the focus in reviewing the exercise of administrative discretion again to the formality of a Charter rights analysis, however, represents a step backwards. The goal should not be to ossify constitutional and administrative law doctrines but developing approaches which bridge these conceptually rich terrains.

To that end, what can be lost in the recent contretemps over Charter Values is the original premise and promise of the framework – that it might finally create space for discretionary decision-makers and those reviewing their decisions to examine the application of Charter Values in ways that take seriously distinct policy and statutory settings. In this contextual vision, the possibility that Charter Values such as “expressive freedom” and “privacy” may work differently in the context of Labour Boards than the context of the Parole Board is a strength of the framework, not its undoing.

The criticisms levelled against Charter Values merit attention. To the extent, over time, those concerns are addressed, this framework will thrive. To the extent critics remain unpersuaded, eventually, a return to the pre-Doré  approach (or some other approach) is more than likely.

If Charter Values truly is going to follow the path of doctrines like the duty of fairness, what we need is a principled, consistent and flexible approach from the Court to the evolution of this framework. This judicial catalyst, in turn, will generate space for Charter Values to be developed in ways which resonate with the lived experience of discretionary decision-makers and those subject to those discretionary decisions. We need, in other words, a framework of Charter Values built from the ground up.