Charter Rights to Charter Values

From Tao v. Canada (Canada Border Services Agency), 2014 CART 6, based on Tao v. Canada (Canada Border Services Agency), 2013 CART 16, in response to Canada (Border Services Agency) v. Tao, 2014 FCA 52:

Charter Values

[27] The Tribunal is directed by the Supreme Court of Canada to consider Charter values during the course of the Tribunal’s deliberations. This direction was discussed by the Supreme Court of Canada decision in Doré v. Barreau du Québec 2012 SCC 12, at paragraph 24:

[24] It goes without saying that administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values (see Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, at para. 71; Pinet v. St. Thomas Psychiatric Hospital, [2004] 1 S.C.R. 528, at paras. 19‑23; and Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, [2010] 1 S.C.R. 815, at paras. 62‑75).

[28] An administrative tribunal is compelled to demonstrate that it has “properly balanced the relevant Charter value with the statutory objectives” in arriving at its decision. Writing for a unanimous Court, Madame Justice Abella discussed an administrative tribunal’s approach to Charter values, in paragraphs 55 to 58:

[55] How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives. In Lake, for instance [Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, the importance of Canada’s international obligations, its relationships with foreign governments, and the investigation, prosecution and suppression of international crime justified the prima facie infringement of mobility rights under s. 6(1) (para. 27). In Pinet, the twin goals of public safety and fair treatment grounded the assessment of whether an infringement of an individual’s liberty interest was justified (para. 19).

[56] Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives. This is where the role of judicial review for reasonableness aligns with the one applied in the Oakes context [R. v. Oakes, [1986] 1 S.C.R. 103]. As this Court recognized in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160, “courts must accord some leeway to the legislator” in the Charter balancing exercise, and the proportionality test will be satisfied if the measure “falls within a range of reasonable alternatives”. The same is true in the context of a review of an administrative decision for reasonableness, where decision-makers are entitled to a measure of deference so long as the decision, in the words of Dunsmuir [Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190] “falls within a range of possible, acceptable outcomes” (para. 47).

[57] On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play. As LeBel J. noted in Multani, [Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256] when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155), and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.

[58] If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.

The Supreme Court also noted, at paragraph 54:

[54] Nevertheless, as McLachlin C.J. noted in Catalyst [Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5] “reasonableness must be assessed in the context of the particular type of decision making involved and all relevant factors. It is an essentially contextual inquiry” (para. 18). Deference is still justified on the basis of the decision-maker’s expertise and its proximity to the facts of the case. Even where Charter values are involved, the administrative decision-maker will generally be in the best position to consider the impact of the relevant Charter values on the specific facts of the case. But both decision-makers and reviewing courts must remain conscious of the fundamental importance of Charter values in the analysis.

[29] The Tribunal acknowledges that the application of Charter values in the context of administrative proceedings is problematic, given uncertainties as to the nature and extent of such values, as distinct from Charter rights. For example, most relevant Charter protections are found in the “Legal Rights” section of the Charter (sections 7 to 14) and this section of the Charter is frequently held to be not applicable to administrative or civil proceedings generally. For example, and as was noted in Tao (2013) at paragraph 32, the Supreme Court of Canada has held that a regulatory requirement to produce records that may be self‑incriminating does not offend the principle against self-incrimination: Fitzpatrick v. The Queen [1995], 4 S.C.R 154, at paragraph 32. However, the Supreme Court of Canada in M. (A.) v. Ryan [1997] 1 S.C.R. held, at paragraph 23, that, in circumstances where Charter rights do not apply, such as in civil litigation, Charter values must nonetheless be considered, such as in matters of interpreting the application of common law principles. In R. v. Conway [2010] 1 S.C.R. 765, the Supreme Court of Canada held, at paragraph 78, that an administrative tribunal, in exercising its statutory functions, is obliged to act consistently with the Charter and its values.

About brucelarochelle

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This entry was posted in Administrative Law, Charter of Rights, Charter Values, Uncategorized. Bookmark the permalink.

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