Standing at the Divide: The Relationship
Between Administrative Law and
the Charter Post-Multani
Susan L. Gratton*
The polarized opinions of the majority and minority in the
Supreme Court of Canadas decision, Multani v. Commission
scolaire Marguerite-Bourgeoys, set out competing philosophies
of the relationship between administrative law and the law of the
Canadian Charter of Rights and Freedoms. The majority
distinguishes between judicial review under the Charter and
judicial review in administrative law on the basis of the purpose
intended to be achieved by the review in any given case. In
contrast, the minority adopts a categorical distinction between
Charter review and administrative review based on whether the
government activity at issue involves law or administrative
discretion.
The author argues that the purposive approach of the
majority has the potential to rationalize the Supreme Court of
Canadas Charter and administrative law jurisprudence, thereby
laying the foundation for a conceptually coherent theory of
public law in the post-Charter era. In contrast, the minoritys
categorical approach
is ultimately unworkable given the
difficulty of distinguishing between law and discretion in the
modern administrative state. As an illustration, the author
examines a particular jurisprudential trouble spot at the
intersection of administrative and Charter law: the prescribed
by law condition in section 1 of the Charter. The prescribed by
law jurisprudence serves as a cautionary tale relating the
conceptual flaws of a categorical approach to law and discretion.
The categorical approach to administrative law and the Charter
preferred by the minority in Multani would only perpetuate this
ill-conceived distinction between law and discretion and allow it
the Supreme Court of Canadas Charter
to
jurisprudence more widely.
In order to realize the full potential of the majority
decision, the author argues that it is necessary for the Court to
acknowledge the variable relationship existing between law and
discretion, as well as its implications for Charter review of
decisions lying along the full length of the law/discretion
spectrum.
infiltrate
Les opinions polarises de la majorit et de la minorit
dans larrt Multani c. Commission scolaire Marguerite-
Bourgeoys de la Cour suprme du Canada mettent en lumire
les philosophies qui sopposent quant la relation entre le droit
administratif et le droit issu de la Charte canadienne des droits
et liberts. La majorit distingue la rvision judiciaire sous
lgide de la Charte de la rvision judiciaire telle que conue
par le droit administratif en sappuyant sur lobjectif de la
rvision dans chacun des cas. La minorit adopte lopinion
selon laquelle il existe une distinction catgorique entre les
deux domaines, fonde sur la qualification de lactivit
gouvernementale en litige comme impliquant le droit ou plutt
lexercice dune discrtion administrative.
Lauteur soutient que cette approche tlologique de la
majorit a le potentiel de rationnaliser la jurisprudence de la
Cour suprme du Canada en matire de Charte et de droit
administratif, contribuant ainsi tablir les fondements dune
thorie du droit public conceptuellement cohrente en cette re
post-Charte. Par contre, lapproche catgorique mise de lavant
par la minorit est ultimement irralisable de par la difficult
tablir, dans un tat administratif moderne, la distinction entre
le droit et la discrtion. titre dillustration, lauteur analyse un
lment lintersection du droit administratif et de lapplication
de la Charte qui est lobjet dune certaine controverse
jurisprudentielle : la condition, larticle 1 de la Charte, selon
laquelle les droits ne peuvent tre restreints que par une rgle
de droit. La jurisprudence relative cette condition sert de
rcit difiant pour associer les lacunes conceptuelles de
lapproche catgorique au droit et la discrtion. Lapproche
catgorique dfendue par la minorit dans Multani quant la
relation entre le droit administratif et la Charte ne contribuerait
qu perptuer la distinction mal fonde entre le droit et la
discrtion et permettre son infiltration de faon plus
importante dans la jurisprudence de la Charte dveloppe par la
Cour suprme du Canada.
Dans le but de concrtiser le plein potentiel de la dcision
de la majorit, lauteur soutient quil est ncessaire pour la
Cour de reconnatre la relation variable entre le droit et la
discrtion ainsi que ses consquences possibles sur la rvision
en vertu de la Charte de certaines dcisions qui se situent dun
bout lautre du spectre droit/discrtion.
* S.J.D. Candidate and Adjunct Faculty, University of Toronto, Faculty of Law. My sincere thanks to
David Dyzenhaus, Lorne Sossin, Tom McKinlay, Eric Adams, and the anonymous peer reviewers for
their thoughtful comments on drafts of this paper.
Susan L. Gratton 2008
To be cited as: (2008) 53 McGill L.J. 477
Mode de rfrence : (2008) 53 R.D. McGill 477
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Introduction
I. The Variable Concept of Discretion in Administrative Law
A. The Law/Discretion Spectrum and Weak Discretion
B. Weak Discretion in Administrative Law
II. Discretion Under the Charter: The Example of Prescribed
by Law
A. Early Prescribed by Law Cases and the Vagueness
B. Prescribed by Law and Discretion
C. The Categorical Law/Discretion Distinction in Slaight
D. Prescribed by Law and Weak Discretion
E. A Purposive Approach to the Prescribed by Law
Doctrine
Condition
III. A Purposive Relationship Between the Charter and
Administrative Law
Conclusion
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Introduction
The problem of how to deal with alleged violations of the Canadian Charter of
Rights and Freedoms1 resulting from the exercise of administrative discretion has
been a recurring theme in recent jurisprudence of the Supreme Court of Canada.
When should judicial review of administrative action proceed on Charter principles
and when should it proceed on administrative law principles? The most recent Court
decision tackling this issue, Multani v. Commission scolaire de Marguerite-
Bourgeoys,2 demonstrates that a consistent analytical framework for answering this
question continues to elude the Court. Nor do the majority or minority in Multani
appear to appreciate the broader implications of their opposing positions. However,
the deep analytical divide between the majority and minority opinions may prove
unexpectedly beneficial. The Court has synthesized many years of confusing and
conflicting statements on this issue into two polarized approaches to the appropriate
relationship between the Charter and administrative law. All that remains is to
determine which is correct.
In this paper, I argue for what I refer to as the purposive approach of the majority
opinion. This approach requires the court to examine the purpose of the judicial-
review exercise before it in determining whether to proceed on Charter principles or
administrative law principles. In Multani, the majority chose to apply a Charter
analysis, because even though the case involved an administrative decision rather
than a law, the primary issue was not whether the decision maker exceeded its
statutory authority in making the decision, but whether the decision infringed
freedom of religion. In other words, the primary purpose of judicial review was to
determine compliance with the Charter. 3
In contrast, the minority in Multani would have decided the case on
administrative law principles since the alleged Charter violation resulted from an
administrative decision rather than a law. I refer to this as a categorical approach to
the relationship between the Charter and administrative law, since it would require
courts to draw a categorical distinction between Charter disputes involving law and
those involving administrative discretion.
In my view, a purposive approach to the relationship between the Charter and
administrative law is the only feasible one in a complex administrative state, where it
is often not possible to distinguish between governance through law and governance
through discretion. The Supreme Court of Canada has already recognized this
1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
2 Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256, 264
3 The decision makers authority was called into question only tangentially, since a decision
violating the Charter necessarily meant that the decision maker had exceeded its jurisdiction.
[Charter].
D.L.R. (4th) 577 [Multani].
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difficulty in its administrative law jurisprudence. In administrative review, categories
of governance are avoided in favour of a more sophisticated, variable concept of
discretion.4 A categorical approach to the broader relationship between administrative
law and the Charter is ultimately inconsistent with that jurisprudence and would
represent a giant step backward in the development of a cohesive post-Charter theory
of public law.
The flaws of a categorical approach to the relationship between the Charter and
administrative law are convincingly illustrated in a long line of jurisprudence
interpreting the prescribed by law condition in section 1 of the Charter.5 In those
cases, the Supreme Court of Canada has already attempted but failed to draw a
categorical distinction between law and discretion. I suggest that the incoherence of
the categorical approach in the context of the prescribed by law jurisprudence
demonstrates why a purposive relationship between the Charter and administrative
law is preferable more generally.6
There are also broader reasons for favouring a purposive relationship between the
Charter and administrative law. The majoritys approach in Multani remains faithful
to the different functions that the Charter and administrative law doctrine were
intended to play in the Canadian legal regime. The Charter was enacted to protect the
fundamental social values shared by Canadians.7 Administrative law, in contrast,
ensures that these fundamental rights and freedoms are faithfully translated from their
legislative context through their application by the institutions of government. The
former is concerned with the content of a law or decision; the latter, with the process
of decision making and the relationship between the decision and its legislative
antecedent. As long as these different purposes are respected, I suggest that the
4 See e.g. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174
D.L.R. (4th) 193 [Baker cited to S.C.R.]; Suresh v. Canada (Minister of Citizenship and Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3, 208 D.L.R. (4th) 1 [Suresh]. I discuss these decisions in Part I.B,
below.
5 Supra note 1, s. 1.
6 On the relationship between the Charter and administrative discretion generally, see June M. Ross,
Applying the Charter to Discretionary Authority (1991) 29 Alta. L. Rev. 382; Sujit Choudhry &
Kent Roach, Racial and Ethnic Profiling: Statutory Discretion, Constitutional Remedies, and
Democratic Accountability (2003) 41 Osgoode Hall L.J. 1; Lorne Sossin, Discretion Unbound:
Reconciling the Charter and Soft Law (2003) 45 Can. Pub. Admin. 465; Genevive Cartier, The
Baker Effect: A New Interface Between the Canadian Charter of Rights and Freedoms and
Administrative LawThe Case of Discretion in David Dyzenhaus, ed., The Unity of Public Law
(Oxford: Hart, 2004) 61. The Multani decision has already begun to generate further discussion on the
Charters relationship with administrative law. See David Mullan, Administrative Tribunals and
Judicial Review of Charter Issues After Multani (200607) 21 N.J.C.L. 127 [Mullan, After
Multani].
7 See e.g. the lofty language used to describe s. 15 in Vriend v. Alberta: The rights enshrined in s.
15(1) of the Charter are fundamental to Canada. They reflect the fondest dreams, the highest hopes
and finest aspirations of Canadian society ([1998] 1 S.C.R. 493 at para. 67, 156 D.L.R. (4th) 385,
Cory J.).
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Charter and administrative law are highly compatible, and much of the confusion
about the principles to be applied in cases of overlap disappears.
The paper is organized into three parts. In Part I, I introduce the variable concept
of administrative discretion. I also describe how the Supreme Court of Canadas
administrative law jurisprudence has evolved to accommodate cases of weak
discretion, which involve an inextricable combination of law and discretion. In Part
II, I use the example of the prescribed by law jurisprudence under section 1 of the
Charter to demonstrate that a categorical distinction between law and discretion has
proved conceptually inadequate to account for cases of weak discretion. I suggest that
many of the prescribed by law cases might be reconciled through a purposive
approach to the distinction between law and discretion. In Part III, I discuss the
majority and minority opinions in Multani and argue that the opposing theories of the
relationship between the Charter and administrative law offered therein are an
extension of the same conceptual tension evident in the prescribed by law
jurisprudence. I argue that the lessons of the prescribed by law jurisprudence, as well
as the evolution of administrative law, are both compelling reasons to embrace the
majoritys purposive approach to the relationship between the Charter and
administrative law.
I. The Variable Concept of Discretion in Administrative Law
A. The Law/Discretion Spectrum and Weak Discretion
Conceptually, law and discretion lie at opposite extremes of a broad spectrum of
government activity. However, these outer extremes are purely hypothetical.
Complete statutory certainty is impossible since language necessarily admits of some
ambiguity. Plenary discretion is also impossible since discretion is always conferred
in some context that must be taken into account in defining the scope of the
discretion. It might even be said that law and discretion need each other. Law
becomes meaningful in its application to real situations. And discretion without a
legal foundation is tyranny.8
Theorists writing on the concept of discretion have long acknowledged its
symbiotic relationship with law.9 In describing discretion as the hole in a
doughnut of restrictions, Ronald Dworkin recognized that the hole was not of
8 John Locke, The Second Treatise of Government: An Essay Concerning the True Original, Extent,
and End of Civil Government, ed. by Mark Goldie (London: J.M. Dent, 1993) ([w]herever law ends,
tyranny begins at para. 202).
9 See Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press,
1977) at 31-39; Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (Baton Rouge:
Louisiana State University Press, 1969) at 15-21. See also D.J. Galligan, Discretionary Powers: A
Legal Study of Official Discretion (Oxford: Clarendon Press, 1986) at 20-33, 207-19; J.H. Grey,
Discretion in Administrative Law (1979) 17 Osgoode Hall L.J. 107.
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uniform size and shape. 10 He distinguished between weak and strong forms of
discretion. Weak discretion was said to exist where an official is given the authority
to make a decision but is required to apply prescribed standards. Strong discretion
meant that the official is entitled to create his or her own standards. Dworkin used the
example of a lieutenant ordering a sergeant to choose five men for patrol. The
sergeant would be exercising weak discretion if the lieutenant were to require that he
choose the five most experienced men. The sergeant would be exercising strong
discretion if the lieutenant were to leave the criteria for making that choice up to the
sergeant.11
D.J. Galligan argues for an infinitely variable concept of discretion, ranging
seamlessly from the wide assessments that may be involved in creating ones own
standards to the relatively narrow margins open in applying a reasonably clear
standard.12 Whichever description is preferred, theorists consistently acknowledge
that law and discretion cannot be relegated into conceptually distinct categories but
necessarily exist in combination. I refer to this idea as a variable concept of discretion
as distinguished from a categorical one.13
This variable concept of discretion is reflected in the myriad of legislative
provisions governing our modern administrative state. The degree of discretion
10 Ibid.
11 Ibid. at 31-33. Dworkin recognized the limited value of this example in law, since our constitution
does not allow any administrative delegate to make a truly unfettered choice. Even if no express
standards are prescribed, the purpose of the legislative scheme and the principles of law will always
constrain the exercise of discretion (ibid. at 32-38).
12 Galligan, supra note 9 at 14. For his part, American scholar Kenneth Davis focused on instances
of strong discretion but also acknowledged that the full concept of discretion was more complex:
A decision as to what is desirable may include not only weighing desirability but also
guessing about unknown facts and making a judgment about doubtful law, and the
mind that makes the decision does not necessarily separate facts, law, and discretion.
Furthermore, the term discretion may or may not include the judgment that goes into
finding facts from conflicting evidence and into interpreting unclear law; the usage is
divided (supra note 9 at 4-5).
13 The variable nature of discretion is more controversial in the judicial context. Some theorists
differentiate between legal judgment, in which a judge chooses among plausible meanings to be given
to an open-ended legislative standard on the facts before him or her, and judicial discretion, in which a
judge chooses among different options left to him or her by an expressly worded legislative grant of
authority. F.A.R. Bennion has suggested that these two concepts are as different as a jaguar and a
donkey (Understanding Common Law Legislation: Drafting and Interpretation (Oxford: Oxford
University Press, 2001) at 116). See also F.A.R. Bennion, Distinguishing Judgment and Discretion
[2000] P.L. 368; F.A.R. Bennion, Judgment and Discretion Revisited: Pedantry or Substance?
[2005] P.L. 707. Regardless of the viability of this distinction in the judicial context, it cannot apply in
the administrative context. Both judgment and discretion, as described by Bennion, fall within the
notion of weak or structured discretion in administrative law and, as a result, may require some degree
of deference to the decision maker. Recent examples in Canadian law include Ferroequus Railway v.
Canadian National Railway (2003 FCA 454, [2004] 2 F.C. 42, 313 N.R. 363) and Dean v. Manitoba
Public Insurance (2006 MBCA 97, [2006] 12 W.W.R. 225, 208 Man. R. (2d) 31).
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granted by a particular legislative provision may vary between almost no discretion
and strong discretion in the Dworkinian sense, depending on the nature, extent, and
precision of the standards to be applied, and the particular facts in issue. This is
equally the case when Charter rights are at issue. The state may impact Charter rights
through any combination of legal and discretionary power. Cases involving
government action at the extremes of the spectrum, based on either a reasonably clear
legal standard or wide discretionary power, are relatively easy to classify as one or the
other. However, cases lying along the middle ground of the spectrumcases of weak
discretionare more difficult. They involve broadly worded provisions that grant
some degree of discretion to an administrative delegate but fall short of a conferral of
broad discretionary authority. In these cases, the administrative delegate interprets his
or her enabling provision to require the limitation of a Charter right or freedom, and
acts accordingly. The greater the scope for interpretation left to the delegate, the more
his or her role in applying the provision begins to resemble administrative discretion.
In such cases, it is often impossible to make a principled decision as to whether the
resulting rights limitation is located within the law or within the decision.
B. Weak Discretion in Administrative Law
Administrative law jurisprudence was preoccupied with the variable relationship
between law and discretion long before the Charter was introduced. The doctrine of
ultra vires requires courts to ensure that the exercise of administrative discretion takes
place within legal boundaries. A central problem in the evolution of administrative
law has been to determine where these legal boundaries end and discretion begins.
At one time, administrative law did draw a categorical distinction between law
and discretion. Administrative decisions involving law were judicially reviewable on
a standard of correctness. Decisions involving discretion were only reversible by a
court in rare cases of abuse.14 In more difficult cases involving weak discretion, courts
treated the decision as falling within one or the other category (most often law), or,
alternatively, they divided the statutory grant of authority into its legal and
discretionary components. In the latter case, the interpretation of statutory conditions
14 The traditional categorical approach to the judicial review of discretionary decisions was
famously articulated by Rand J. in Roncarelli v. Duplessis ([1959] S.C.R. 121, 16 D.L.R. (2d) 689).
Rand J. interpreted the ultra vires doctrine to preclude the exercise of discretion in bad faith or for
improper purposes:
[N]o legislative Act can, without express language, be taken to contemplate an
unlimited arbitrary power exercisable for any purpose, however capricious or
irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the
Commission may not be mentioned in such statutes but they are always implied as
exceptions. Discretion necessarily implies good faith in discharging public duty;
there is always a perspective within which a statute is intended to operate; and any clear
departure from its lines or objects is just as objectionable as fraud or corruption (ibid. at
140).
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constraining the officials discretion was a preliminary matter of law on which the
officials jurisdiction would depend. Unless the official was correct in the
interpretation and application of these conditions, no jurisdiction to exercise his or her
discretion ever arose and the courts would quash any resulting decision.15
The distinction between the interpretation of legal standards, reviewable on a
standard of correctness, and the exercise of discretion, reversible only in cases of
abuse, became murkier as the administrative state grew more complex. With the
increased specialization and expertise of administrative tribunals, the Supreme Court
of Canada came to recognize that the legislature sometimes intended for legal
questions to be determined by those bodies rather than by the courts.16 The Court
provided a crucial insight into the relationship between law and discretion in 1979
with its decision in Canadian Union of Public Employees, Local 963 v. New
Brunswick Liquor Corp.17 It held that the Public Service Labour Relations Board was
entitled to interpret statutory conditions contained in its enabling statute, as part of its
broad power to supervise and administer the novel collective-bargaining regime
created by the statute.18 The traditionally distinct categories of legal interpretation and
discretion began to converge.19 This recognition that responsibility for both legal and
discretionary decisions might reside in the same tribunal meant that a dichotomous
standard of review for each type of decision no longer made sense.
Throughout the 1980s and 1990s, the Court developed the pragmatic and
functional test as a means of determining the degree to which courts should review
administrative decisions involving law (i.e., those lying closer to the law end of the
law/discretion spectrum). The pragmatic and functional test required that a standard
of review be chosen as a function of four variables: the presence or absence of a
statutory provision negating the right of appeal; the relative expertise of the decision
maker; the purpose of the provision and the legislation generally; and the nature of
the question. Where these variables indicated a legislative intent to leave the
15 This divided approach is essentially what occurred in preliminary or collateral matters cases.
See Bell v. Ontario (Human Rights Commission), [1971] S.C.R. 756, 18 D.L.R. (3d) 1; Jacmain v.
Canada (A.G.), [1978] 2 S.C.R. 15, 81 D.L.R. (3d) 1. This line of case law is also referred to as the
jurisdictional fact doctrine (P.W. Hogg, The Jurisdictional Fact Doctrine in the Supreme Court of
Canada: Bell v. Ontario Human Rights Commission (1971) 9 Osgoode Hall L.J. 203).
16 See e.g. National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324 at
1336, 74 D.L.R. (4th) 449, Wilson J., concurring in the result. The Court also held that regulatory
tribunals exercising broad public-interest jurisdiction should be accorded deference in the
interpretation and application of nonjurisdictional provisions in their enabling statutes. See Pezim v.
British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, 114 D.L.R. (4th) 385; Canada
(Combines Investigation Branch, Director of Investigation and Research) v. Southam Inc., [1997] 1
S.C.R. 748, 144 D.L.R. (4th) 1).
17 [1979] 2 S.C.R. 227, 97 D.L.R. (3d) 417 [C.U.P.E. cited to S.C.R.].
18 Ibid.
19 Dickson J. for the Court noted in respect of the statutory provision in issue: There is no one
interpretation which can be said to be right (ibid. at 237).
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interpretation of the enabling statute to the administrator, the courts deferred to that
interpretation on a standard of patent unreasonableness or reasonableness
simpliciter.20
In 1999, the Court in Baker v. Canada (Minister of Citizenship and Immigration)
held that the same variable standard of review should be applied to discretionary
decisions (i.e., decisions lying closer to the discretion end of the law/discretion
spectrum).21 Baker involved the broad discretionary power of the minister of
citizenship and immigration under the Immigration Act to allow illegal residents to
remain in Canada on compassionate or humanitarian considerations.22 The minister
accepted the recommendation of an immigration officer that insufficient H&C
considerations existed in Ms. Bakers case. Applying the pragmatic and functional
analysis, the Court held that even though the ministers decision was discretionary, it
was reviewable on a standard of reasonableness. Justice LHeureux-Dub, writing for
the majority, reasoned that there is no rigid dichotomy between discretionary and
nondiscretionary decisions, and no easy distinction may be drawn between
statutory interpretation and discretion.23 Baker thus eliminated any persisting
categorical distinction between law and discretion for the purposes of administrative
law.24
The Court had the opportunity to apply this holistic approach to the
law/discretion spectrum in Suresh v. Canada (Minister of Citizenship and
Immigration).25 A unanimous Court applied the pragmatic and functional test to the
review of a deportation order involving a complex blend of legal and discretionary
elements. Paragraph 53(1)(b) of the Immigration Act gave the minister limited
discretion to deport refugees in circumstances where they faced the possibility of
torture.26 This discretionary power was subject to two preliminary statutory
conditions: first, the provision operated only in respect of a refugee whose life or
freedom would be threatened if returned to his or her country; second, it was
20 For recent discussions of the development of the pragmatic and functional approach to judicial
review in administrative law, see Lorne Sossin & Colleen M. Flood, The Contextual Turn:
Iacobuccis Legacy and the Standard of Review in Administrative Law (2007) 57 U.T.L.J. 581;
Philip Bryden, Understanding the Standard of Review in Administrative Law (2005) 54 U.N.B.L.J.
75.
21 Supra note 4.
22 R.S.C. 1985, c. I-2, s. 114(2), as rep. by Immigration and Refugee Protection Act, S.C. 2001, c.
27, s. 25(1).
23 Supra note 4 at para. 54, LHeureux-Dub J.
24 This aspect of the Baker decision (one of several having important implications for administrative
law) is acknowledged by Laura Pottie & Lorne Sossin (Demystifying the Boundaries of Public Law:
Policy, Discretion, and Social Welfare (2005) 38 U.B.C. L. Rev. 147 at 161) and Genevive Cartier
(supra note 6 at 73-74).
25 Supra note 4.
26 Supra note 22, s. 53(1)(b), as rep. by Immigration and Refugee Protection Act, S.C. 2001, c. 27, s.
274(a).
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necessary for the minister to believe that the refugee constituted a danger to the
security of Canada.27 Only where both these statutory conditions were met was the
ultimate balancing exercise between the risk to the refugee versus the risk to
Canadian security left to the discretion of the minister.28
Prior to C.U.P.E., the legal and discretionary components of the ministers
decision in Suresh would have been reviewed in a multi-stage process. The
fulfillment of the two statutory conditions would have been viewed as preliminary
issues of law, reviewable on a standard of correctness. Only if the court determined
that the two conditions were correctly applied by the minister would the court defer to
the ministers discretion in making the final decision. But in Suresh, the Court refused
to fragment the judicial-review exercise in this manner and, applying Baker, held that
the minister was entitled to deference in her interpretation and application of the two
statutory conditions to Mr. Sureshs case.29
The post-Baker approach to judicial review in administrative law is a more
accurate reflection of how administrative decisions are made in practice. It is highly
unlikely that the minister in Suresh differentiated between the legal and discretionary
elements of her authority. Even if she attempted to do so, it is difficult to see how they
could be separated. In addition to the residual discretionary power expressly
conferred by paragraph 53(1)(b) of the Immigration Act, the minister was also
required to exercise some discretion in interpreting the open-textured language of the
two preliminary conditions. What does it mean for a refugee to be under threat? What
circumstances amount to a danger to Canadian security? Each of these questions
involves its own particular mix of law and discretionthe second question lying
somewhat closer to the discretion end of the spectrum since, unlike the first question,
it requires only a reasonable belief on the part of the minister. Nor is it likely that the
minister in Suresh considered there to be a clear demarcation between the preliminary
matter of the conditions having been met and the eventual deportation decision. The
strength of her convictions on each of the two conditions would necessarily have
impacted her ultimate exercise of discretion.30
27 Ibid.
28 Ibid. The provision also contained a further statutory condition, applying ss. 19(1)(e)-(f) of the
Immigration Act (ibid.), that was not in issue on the facts in Suresh (supra note 4).
29 The Court did discuss the ministers decision under each of the two statutory conditions
separately and, in this respect, the judicial-review exercise was fragmented. However, my point here is
a different one. Although the two statutory conditions were analyzed separately, the discretionary and
legal elements of each were fused in accordance with the reasoning in Baker. The Court accepted the
variable relationship between law and discretion (ibid.).
30 The Supreme Court of Canada clearly recognized this link between the statutory conditions and
the ministers residual discretion. It quoted the following passage from a similar House of Lords
decision:
The question of whether the risk to national security is sufficient to justify the
appellants deportation cannot be answered by taking each allegation seriatim
and deciding whether it has been established to some standard of proof. It is a
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As a whole, the provision at issue in Suresh is a classic example of weak
discretion, in which law and discretion are combined in one indivisible grant of
authority. Just as administrative officials are unlikely to be able to segregate the legal
and discretionary elements in such grants of authority, so too are courts unlikely to be
successful in restricting their review to legal errors occurring in the resulting
decisions. The decision in Suresh, like Baker before it, was groundbreaking in that it
recognized the true complexity of this kind of administrative decision making and
rejected an artificial divide between law and discretion.31
Recent decisions indicate that the Court may be backsliding somewhat in its
appreciation of the variable relationship between law and discretion. In Dunsmuir v.
New Brunswick, the Court embarked on a mission to simplify the entire system of
judicial review, dispensing with the patent unreasonableness standard and replacing
the pragmatic and functional test with a new standard of review analysis.32 The
majority in Dunsmuir did not expressly address the relationship between law and
discretion, but it is troubling that its analysis rested largely on categorical distinctions
between true questions of jurisdiction or vires, questions of general law, other
questions of law, and questions of fact, discretion and policy.33 Early commentary
on the decision suggests that the Courts reach in Dunsmuir may have exceeded its
grasp. Despite the Courts professed intentions, the standard-of-review analysis may
not have a substantial impact on the outcome of administrative-review exercises.34 In
question of evaluation and judgment, in which it is necessary to take into
account not only the degree of probability of prejudice to national security but
also the importance of the security interest at stake and the serious
consequences of deportation for the deportee (Secretary of State for the Home
Department v. Rehman, [2001] UKHL 47, [2003] 1 A.C. 153 at para. 56, [2002]
1 All E.R. 122, Lord Hoffman, cited in Suresh, ibid. at para. 77).
31 On the other hand, I heartily agree with those who have criticized Suresh for applying deference
to a decision raising Charter issues. See David Mullan, Deference from Baker to Suresh and
BeyondInterpreting the Conflicting Signals in David Dyzenhaus, ed., The Unity of Public Law
(Oxford: Hart, 2004) 21 at 41-47 [Mullan, Deference]; David W. Elliott, Suresh and the Common
Borders of Administrative Law: Time for the Tailor? (2002) 65 Sask. L. Rev. 469 at 495-96.
32 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 63, 291 D.L.R. (4th) 577 [Dunsmuir].
33 Ibid. at paras. 51-62. In particular, the majoritys discussion of true questions of jurisdiction
(ibid. at para. 59) is redolent of the preliminary- or collateral-matters cases that the Court has been at
such pains to leave behind. See David Mullan, Dunsmuir v. New Brunswick, Standard of Review and
Procedural Fairness for Public Servants: Lets Try Again! (2008) 21 Can. J. Admin. L. & Prac. 117 at
127-30 [Mullan, Lets Try Again]). Deschamps J., in minority, is even more categorical in tone,
stating bluntly that the case does not concern a discretionary power (Dunsmuir, ibid. at para. 165).
In contrast, Binnie J., in minority, expressly reasserts the variable relationship between law and
discretion by acknowledging that administrative decisions generally call for the exercise of
discretion (ibid. at para. 146).
34 Mullan, Lets Try Again, ibid. at 135; Alice Woolley, The Metaphysical Court: Dunsmuir v.
New Brunswick and the Standard of Review (2008) 21 Can. J. Admin. L. & Prac. 259; Lorne Sossin,
Dunsmuir: Plus a change (17 March 2008), online: The Court
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any event, no matter how Dunsmuir plays out, it is unlikely that the achievement of
Baker will be undone. By extending the same standard-of-review framework to all
decisions lying along the law/discretion spectrum, and by acknowledging that
deference will sometimes be appropriate in cases of weak discretion, the Court has
moved firmly beyond its old categorical approach to law and discretion.35
As discussed below, the Court has not yet integrated this advance in its
understanding of administrative discretion into its Charter jurisprudence. In Part II, I
examine a particular trouble spot in that jurisprudence: the interpretation and
application of the prescribed by law condition in section 1 of the Charter. Here, the
Courts insistence on a categorical divide between law and discretion has led to a
morass of confusing and conflicting decisions. This jurisprudence is not only
conceptually inconsistent with the Courts administrative law jurisprudence, but is
also internally incoherent. For both these reasons, the prescribed by law cases offer a
compelling argument for rejecting both a categorical distinction between law and
discretion and a categorical approach to the broader relationship between the Charter
and administrative law.
II. Discretion Under the Charter: The Example of Prescribed by
Law
Section 1 of the Charter requires that government action limiting a protected
right or freedom be prescribed by law in order to be justified as reasonable in a free
and democratic society.36 This threshold test prevents courts from engaging in a
balancing exercise between state interests and individual rights where a limitation of
rights has not been legally authorized. In such cases, the limit is not prescribed by law
and the court never reaches the Oakes test.37 A Charter infringement is established
and the court moves immediately to the issue of remedy.
Twenty-six years after the introduction of the Charter, the jurisprudence on the
meaning of the prescribed by law condition remains underdeveloped and confused.38
decision to the bold innovations of a traffic engineer that in the end do no more than shift rush hour
congestion from one road intersection to another without any overall saving to motorists in time or
expense (ibid. at para. 139).
35 See Lake v. Canada (Minister of Justice), 2008 SCC 23, 292 D.L.R. (4th) 193, 373 N.R. 339
(applying a reasonableness standard to the review of a discretionary extradition decision consistent
with Baker and Suresh).
36 Supra note 1, s. 1 ([t]he Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society).
37 The test for balancing individual rights with societal interests under s. 1 was first laid down by the
Court in R. v. Oakes ([1986] 1 S.C.R. 103 at 135-42, 26 D.L.R. (4th) 200 [Oakes cited to S.C.R.]).
This test requires that the Court evaluate the importance of the laws objective and then weigh this
objective against the means chosen by the government to achieve the objective.
38 In spite of the significance of the prescribed by law condition, it has received much less judicial
and academic attention than the remainder of s. 1 of the Charter. An important exception is Danielle
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There is no clear consensus on how the courts should apply the condition in the case
of a limitation of Charter rights caused by the exercise of administrative discretion.
The prevailing approach is that a discretionary decision is prescribed by law for the
purpose of section 1 when the decision is statutorily authorized. However, a minority
viewthat discretionary decisions are, by definition, never prescribed by law
persists.39 A review of the early evolution of the prescribed by law condition is
necessary in order to explain how this confusion came about.
489
A. Early Prescribed by Law Cases and the Vagueness Doctrine
The prescribed by law condition seems to have been included within section 1 of
the Charter in order to protect fundamental rule-of-law values, such as predictability
and certainty in law.40 A citizen should be in a position to anticipate the legal
consequences of his or her actions. Laws must therefore be adequately accessible to
the public and formulated with sufficient precision to prevent arbitrary enforcement.
The prescribed by law condition is intended to prevent the government from
justifying limitations of Charter rights unless these requirements are met.
Early in the Charters evolution, when most Charter challenges were aimed at
legislative provisions, this rationale was fulfilled by the development of a void for
vagueness doctrine modeled on the U.S. doctrine of the same name.41 The Supreme
Court of Canada held in R. v. Nova Scotia Pharmaceutical Society that a law meets
Pinard, Les seules rgles de droit qui peuvent poser des limites aux droits et liberts
constitutionnellement protgs et larrt Slaight Communications (1992) 1 N.J.C.L. 79. See also
Lorraine Eisenstat Weinrib, The Supreme Court of Canada and Section One of the Charter (1988)
10 Sup. Ct. L. Rev. 469 at 472-78; Ross, supra note 6.
39 There are Supreme Court of Canada decisions supporting both interpretations of the prescribed by
law condition, though in some cases the support is not explicit. The prevailing view is reflected in
Slaight Communications Inc. v. Davidson ([1989] 1 S.C.R. 1038 at 1080-81, 59 D.L.R. (4th) 416
[Slaight cited to S.C.R.]), Ross v. New Brunswick School District No. 15 ([1996] 1 S.C.R. 825, 133
D.L.R. (4th) 1 [Ross cited to S.C.R.]), and, most recently, the majority opinion in Multani (supra note
2 at para. 22). The minority view can be located in Trinity Western University v. British Columbia
College of Teachers (2001 SCC 31, [2001] 1 S.C.R. 772, 199 D.L.R. (4th) 1), Chamberlain v. Surrey
School District No. 36 (2002 SCC 86, [2002] 4 S.C.R. 710, 221 D.L.R. (4th) 156), and the minority
opinion in Multani (ibid. at paras. 112-25).
40 See Peter W. Hogg, Constitutional Law of Canada, 5th ed. (Toronto: Carswell, 2007) at 797-99
[Hogg, Constitutional Law]. See also Carol Rogerson, The Judicial Search for Appropriate Remedies
Under the Charter: The Examples of Overbreadth and Vagueness in Robert J. Sharpe, ed., Charter
Litigation (Toronto: Butterworths, 1987) 233 at 290-297. The legislative background of the prescribed
by law condition is discussed by Pinard (supra note 38 at 83-97) and Timothy J. Christian (The
Limitation of Liberty: A Consideration of Section 1 of the Charter of Rights and Freedoms [1982]
U.B.C. L. Rev. Charter Edition 105 at 109-13).
41 For an exhaustive analysis of the vagueness doctrine, both as protected under the prescribed by
law condition as well as elsewhere under the Charter, see Marc Ribeiro, Limiting Arbitrary Power:
The Vagueness Doctrine in Canadian Constitutional Law (Vancouver: UBC Press, 2004). See also
Jonathan Daniels, Valid Despite Vagueness: The Relationship Between Vagueness and Shifting
Objective (1994) 58 Sask. L. Rev. 101.
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the prescribed by law condition as long as it is sufficiently precise to offer an
intelligible standardone providing sufficient guidance for legal debate.42 The
standard is a forgiving one, favouring government flexibility over precision or
certainty, and it has led to a reasonably consistent and rational body of jurisprudence
if, perhaps, one that is unduly deferential to the legislature.43 In Pharmaceutical
Society, the Court applied the intelligible standard test to uphold a provision of the
Combines Investigation Act44 making it an offence to conspire to prevent or lessen
competition unduly.45 A more recent example of a vagueness analysis is Canadian
Foundation for Children, Youth and the Law v. Canada (A.G.),46 in which the Court
upheld a provision of the Criminal Code allowing parents to use corrective force on
children if reasonable under the circumstances.47
The vagueness cases involve statutory provisions closer to the law end of the
law/discretion spectrum. In these statutory provisions, there is no express grant of
authority to an administrative delegate to interpret or apply the provisions. However,
vague language creates ambiguity in the meaning of legal standards, and some
discretion by law-enforcement officials and courts is necessary in order to actualize
law.48 The vagueness doctrine is concerned with those legal standards that are so
ambiguous that law-enforcement officials or the judiciary become lawmakers rather
than law interpreters. The role of courts is to ascribe meaning to legal standards using
interpretive principles, and to fix the point at which these principles are no longer
sufficient to give meaning to the standards.
B. Prescribed by Law and Discretion
The prescribed by law jurisprudence was complicated by the appearance of
Charter challenges aimed at administrative decisions made under express legislative
grants of discretion. These cases involved statutory provisions much closer to the
discretion end of the law/discretion spectrum. At first, courts familiar with the
vagueness doctrine focused on the legislative provision granting discretion. They
42 [1992] 2 S.C.R. 606 at 622, 625, 639, 642, 93 D.L.R. (4th) 35 [Pharmaceutical Society cited to
S.C.R.]. The rationale for preventing vagueness also animates other Charter sections. A law may be
too vague to comply with the principles of fundamental justice under s. 7 of the Charter. See R. v.
Morgentaler, [1988] 1 S.C.R. 30 at 68-73, 44 D.L.R. (4th) 385, Dickson C.J.C. Also, a law that meets
the prescribed by law condition under s. 1 may nevertheless be too vague to meet the minimal-
impairment branch of the Oakes test. See Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 at
94-95, 82 D.L.R. (4th) 321 [Osborne cited to S.C.R.].
43 See Ribeiro, supra note 41 at 102-109, 160.
44 R.S.C. 1970, c. C-23, s. 32(1)(c).
45 Ibid., s. 45(1)(c), as re-en. by Competition Act, R.S.C. 1985, c. C-34, s. 45(1)(c); Pharmaceutical
Society, supra note 42 at 615.
46 2004 SCC 4, [2004] 1 S.C.R. 76, 234 D.L.R. (4th) 257 [Law Foundation].
47 Criminal Code, R.S.C. 1985, c. C-46, s. 43.
48 Pharmaceutical Society, supra note 42 at 638-40. See also Law Foundation, supra note 46 at
paras. 15-18.
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reasoned that if vague legal standards were problematic, the absence of any standards
must be even more so. These courts failed to distinguish between vagueness and
administrative discretion and attempted to apply a vagueness analysis to both.49 This
led them to conclude that section 1 of the Charter should never be available in cases
involving administrative discretion, since legislative grants of discretion were, by
definition, neither certain nor predictable.50
The Supreme Court of Canada gradually recognized, correctly in my view, that
this approach is untenable given the importance of discretionary action in the modern
administrative state.51 But it was left with a dilemma: either legislative grants of
discretion are prescribed by law, in which case the rule-of-law values underlying the
prescribed by law condition are seemingly undermined; or they are not prescribed by
law, in which case the government is required to forego the use of discretion in any
state activity where Charter rights are conceivably at stake.
49 These two categories of prescribed by law cases are contrasted by Sopinka J. in Osborne (supra
note 42 at 94) and are described under different subheadings in Hoggs Constitutional Law (supra note
40 at 799-803). However, the relationship between these two categories has not, to the authors
knowledge, been subject to any significant judicial or academic commentary.
50 See Re Ontario Film & Video Appreciation Society and Ontario Board of Censors (1984), 45
O.R. (2d) 80, 5 D.L.R. (4th) 766 (C.A.), affg (1983), 41 O.R. (2d) 583, 147 D.L.R. (3d) 58 (Div. Ct.)
[Ontario Film cited to O.R.]; R. v. Therens, [1985] 1 S.C.R. 613 at 621, 18 D.L.R. (4th) 655 [Therens
cited to S.C.R.]; R. v. Simmons, [1988] 2 S.C.R. 495 at 531-32, 55 D.L.R. (4th) 673; Luscher v.
Canada (Deputy Minister, Revenue Canada), [1985] 1 F.C. 85, (sub nom. Re Luscher and Deputy
Minister, Revenue Canada) 17 D.L.R. (4th) 503 (Ont. C.A.); International Fund for Animal Welfare v.
Canada, [1989] 1 F.C. 335 at 355, 45 C.C.C. (3d) 457 (Ont. C.A.); R. v. Robson (1985), 19 D.L.R.
(4th) 112, [1988] 6 W.W.R. 519 (B.C.C.A.). This line of case law is more fully discussed by June Ross
(supra note 6 at 399-404). These decisions were incorrectly decided as a result of the confusion
between vagueness and discretion. For example, the Ontario Divisional Court in Ontario Film held
that a provision granting a censorship board strong discretion to censor films was not prescribed by
law because it was vague, undefined, and totally discretionary (Re Ontario Film & Video
Appreciation Society and Ontario Board of Censors, (1983) 41 O.R. (2d) 583 at 592, 147 D.L.R. (3d)
58 (Div. Ct.)). This provision did not contain vague language in the sense that its meaning was
unascertainable. Rather, the language was clear and precise, but its effect was to grant unqualified
power to the board to censor any film and to prohibit … the exhibition of any film in Ontario
(Theatres Act, R.S.O. 1980, c. 498, ss. 3(2)(a)-(b)). It was the unconstrained scope of this grant of
authority that motivated the courts concern for predictability and enforcement discretion.
51 See the reasoning of McLachlin J. (as she then was) in Committee for the Commonwealth of
Canada v. Canada, [1991] 1 S.C.R. 139 at 245, 77 D.L.R. (4th) 385 [Committee for the
Commonwealth cited to S.C.R.]). See text accompanying note 83. Unfortunately, the early decisions
confusing statutory vagueness and administrative discretion continue to complicate the prescribed by
law jurisprudence. Ontario Film (ibid.) was cited approvingly by a unanimous panel of the Supreme
Court of Canada in Eldridge v. British Columbia (A.G.) ([1997] 3 S.C.R. 624 at para. 30, 151 D.L.R.
(4th) 577 [Eldridge cited to S.C.R.]). Therens (ibid.) was relied on by the majority of the Court in R. v.
Orbanski; R. v. Elias (2005 SCC 37, [2005] 2 S.C.R. 3 at para. 36, (sub nom. R. v. Elias; R. v.
Orbanski) 253 D.L.R. (4th) 385 [Orbanski/Elias]). In fact, these decisions were effectively overruled
by Slaight (supra note 39), and it would be helpful for the Court to expressly acknowledge this event.
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C. The Categorical Law/Discretion Distinction in Slaight
The Supreme Court of Canada tackled this dilemma in Slaight Communications
Inc. v. Davidson.52 At issue was a provision of the Canada Labour Code conferring
broad discretion on labour arbitrators to impose equitable remedies where an
employee had been unfairly dismissed.53 No other statutory standards explaining or
constraining this remedial authority were contained in the Code. A labour arbitrator
had exercised his discretion under this provision by ordering an employer to (1) give
its unfairly dismissed employee a letter of reference containing specified text and (2)
say nothing further about the employee. The employer alleged that this order violated
its freedom of expression. The Court held that, in spite of the open-ended language of
the enabling legislation, the prescribed by law condition was met where the
adjudicators order fell within the authority conferred on him by statute.
Chief Justice Lamer, writing for the majority on this issue, recognized that
statutory vagueness and administrative discretion could not be equated in applying
the prescribed by law condition. What was necessary was an analytical framework
that would accommodate both. He accomplished this by requiring, as an initial step in
any Charter case, that the court choose whether its analysis should be directed at a
law or at an administrative decision made pursuant to the law (what June Ross
describes as facial review and as applied review, respectively).54 Chief Justice
Lamer explained the two-part framework as follows:
The application of these two principles to the exercise of a discretion leads
to one of the following two situations:
1. The disputed order was made pursuant to legislation which confers, either
expressly or by necessary implication, the power to infringe a protected
right.
It is then necessary to subject the legislation to the test set out in s. 1 by
ascertaining whether it constitutes a reasonable limit that can be
demonstrably justified in a free and democratic society.
2. The legislation pursuant to which the administrative tribunal made the
disputed order confers an imprecise discretion and does not confer, either
expressly or by necessary implication, the power to limit the rights
guaranteed by the Charter.
It is then necessary to subject the order made to the test set out in s. 1 by
ascertaining whether it constitutes a reasonable limit that can be
demonstrably justified in a free and democratic society;
if it is not thus justified, the administrative tribunal has necessarily
exceeded its jurisdiction;
52 Ibid.
53 R.S.C. 1970, c. L-1, s. 61.5(9)(c) [Code].
54 Supra note 6 at 414-18.
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if it is thus justified, on the other hand, then the administrative tribunal
has acted within its jurisdiction.55
Scenario two, as applied review, is possible because of the ultra vires doctrine in
administrative law and the presumption of constitutionality. An administrative
decision maker may not exceed its legislative authority, and legislation is presumed to
comply with the Charter, so logically the decision maker may not violate the
Charter.56 Chief Justice Lamer explained:
The adjudicator derives all his powers from statute and can only do what he is
allowed by statute to do. It is the legislative provision conferring discretion
which limits the right or freedom, since it is what authorizes the holder of such
discretion to make an order the effect of which is to place limits on the rights
and freedoms mentioned in the Charter. The order made by the adjudicator is
only an exercise of the discretion conferred on him by statute.57
Chief Justice Lamers reasoning equated the prescribed by law condition in
administrative discretion cases with the ultra vires doctrine. His unstated presumption
was that any discretionary decision proceeding to a Charter analysis would already
have been determined to be statutorily authorized in administrative law under the
applicable standard of review. In his view, this administrative law validity was
sufficient to fulfill the prescribed by law condition. Therefore, in contrast to the
vagueness caseswhere the intelligible standard test had been developed to give
meaning to the prescribed by law conditionthere was no need to develop a Charter-
specific prescribed by law analysis to address administrative discretion cases.58
55 Slaight, supra note 39 at 1079-80 [emphasis in original].
56 Ibid. at 1077-78. Ross analyzes the decision in Slaight to adopt an as applied approach to
discretion under the Charter (supra note 6 at 414-18).
57 Slaight, ibid. at 1080-81. It was in this passage that Lamer J. implicitly acknowledged the
conceptual distinction between statutory vagueness and administrative discretion and recognized that
a different (and, in fact, diametrically opposed) analysis was required in the latter case. Although
Lamer J. did not address the earlier case law on this point, his reasoning cannot stand alongside
Ontario Film (supra note 50), and that line of cases was, as of this point, implicitly overruled. This is
because, in the Ontario Film cases, the courts had essentially equated a legislative grant of strong
discretion with vagueness (ibid.). In such a case, a strong grant of discretion meant that the court was
less likely to be able to give meaning to the legislatures intentions and therefore, that the prescribed
by law condition would not be met. In Slaight, in contrast, Lamer J. reasoned that the strong grant of
discretion itself embodied the legislatures intentions and any decision made thereunder must meet the
prescribed by law test. For a critique of this approach, see Pinard, supra note 38 at 110-36.
58 This approach to discretion under the Charter was more firmly entrenched in the Courts
unanimous decision in Ross (supra note 39). Again the issue was the analytical framework to be
applied in determining whether a boards discretionary remedial order violated the Charter. La Forest
J., writing for the Court, divided his analysis into two parts, first holding that the order was statutorily
authorized under a provision granting strong discretionary power and thereafter addressing the
constitutional validity of the order under Charter principles (ibid.). The prescribed by law condition
was not explicitly addressed by the Court, presumably because that analysis was subsumed by the
administrative law analysis. Just as in Slaight, Ross involved a strong discretionary power in neutral
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The Slaight framework resolved the early difficulties in applying the prescribed
by law condition to both vague laws and administrative discretion. Vague laws are
dealt with under scenario one and administrative discretion under scenario two. Most
importantly, the rule-of-law values of predictability and certainty are now met in both
instances. They continue to be met in vague-law cases through the application of the
intelligible-standard test. They are now also met in administrative discretion cases
due to the Supreme Court of Canadas move in Slaight from an ex ante review of the
statutory grant of discretion as an abstract norm, to an ex post facto review of the
decision itself, made in the particular facts of the case. With this twist in perspective,
predictability and certainty are assuredhindsight is 20/20.
The framework adopted in Slaight has other benefits. It succeeds in honouring
the presumed legislative intent behind statutory grants of administrative discretion,
and it corresponds more closely with the intelligible-standard test adopted for vague
laws. In both cases, the section 1 analysis begins with a deferential attitude. Most
cases will pass the prescribed by law thresholdeither by meeting the intelligible-
standard test or the statutory-authority testand proceed to the Oakes test.59 In this
respect, the Slaight decision marked an important advance in the evolving
relationship between the Charter and administrative law.
Unfortunately, the Slaight framework contains a fatal flaw. The framework
requires a reliable means of distinguishing between Charter limits occurring as a
result of law and as a result of discretion. According to Slaight, this distinction lies in
determining whether or not the legislation in issue confers, either expressly or by
necessary implication, the power to infringe a protected right.60 If the law confers the
power to limit Charter rights, then the limit is attributed to the law and the prescribed
by law condition is met unless the law fails the intelligible-standard test. If instead the
law confers an imprecise discretion, then the limit is attributed to the decision and the
prescribed by law analysis turns on the statutory authority of the decision maker. The
choice is either/or: either the Charter limit is contained in the law or it is contained in
discretion.61 The ultimate success or failure of a Charter challenge may hinge on how
the challenge is categorized according to this preliminary distinction.
language so that the Courts choice of scenario two under the Slaight framework was not controversial
in the circumstances of the case (ibid.).
59 See Osborne, supra note 42 at 95.
60 Supra note 39 at 1080.
61 Ibid. The language used by Lamer J. in articulating this preliminary distinction is problematic. It
suggests that the question is whether the power to limit Charter rights is expressly or necessarily
implicitly conferred by the law. Strictly speaking, even provisions conferring strong discretion in
neutral language would meet this test since the power granted by such provisions is all the broader.
But then it would not make sense to speak of a power to limit Charter rights being necessarily
implicit in a law. Even in Slaight, the provision at issue expressly granted the power to limit the
employers freedom of expression. In subsequent decisions such as Suresh (supra note 4), the Court
appears to have applied the test slightly differently in terms of whether the Charter limit is expressly
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In spite of the potential importance of this preliminary distinction, it has
frequently proved impossible to make. Where Charter limits occur through
government action lying in the middle ground of the law/discretion spectrum, courts
are unable to agree on the point at which law ends and discretion beginsthe point at
which they must set aside their legal tools of statutory interpretation and vagueness in
deference to the administrators own interpretation of his or her authority. The elegant
distinction between law and discretion, on which the Slaight framework depends,
falls apart in practice since it fails to account for cases involving weak discretion.62
The result has been persistent incoherence in the Supreme Court of Canadas
prescribed by law jurisprudence.
D. Prescribed by Law and Weak Discretion
Significant confusion results when the Slaight framework is applied to Charter
cases involving weak discretion. This confusion is manifest in a group of three
Supreme Court of Canada decisions involving similar facts but reasoned in three
strikingly different ways. R. v. Orbanski; R. v. Elias, R.v. Therens, and R. v. Thomsen
all involved police officers detaining motorists to determine whether or not they were
intoxicated.63 In all three instances, the officers failed to provide the motorists with
the right to counsel. At issue was whether the limitation of this Charter right was
prescribed by law. Different statutory provisions were involved, each varying in the
degree of discretion left to the officers. In Orbanski/Elias, the provision gave police
officers very broad discretionary power to stop motorists as part of the lawful
execution of their duties.64 Justice Charron, writing for the majority of the Court,
relied on the relative breadth of the discretion conferred by the legislative scheme to
conclude that the prescribed by law condition was met. The officer had clearly been
acting within his statutory authority. She reasoned that the legislation of exhaustive
or necessarily required by the law. However, this characterization also fails to capture the true
conceptual distinction between law and discretion.
62 The problems that later resulted from the categorical law/discretion distinction in Slaight (ibid.),
were most likely not anticipated in Slaight nor in Ross (supra note 39), since the choice was not
controversial on the facts of those cases. Both involved neutrally worded laws granting strong
discretionary authority, so it was clear that the alleged Charter limit in each case was located within
the decision rather than in the law. Subsequent cases involving strong discretion have also been
decided relatively consistently. However, this has not always been the case. In Eldridge, the Courts
decision to locate the Charter limit within the governments decision rather than within the law was
unanimous, but the issue was contentious nonetheless since counsel for both parties had originally
approached the case as raising an issue of law rather than discretion (supra note 51 at para. 23). This
may be why the Court in Eldridge chose to leave open the issue of whether the prescribed by law
condition was met (ibid. at para. 84).
63 Orbanski/Elias, supra note 51; Therens, supra note 50; R. v. Thomsen, [1988] 1 S.C.R. 640, 40
C.C.C. (3d) 411 [Thomsen cited to S.C.R.]. The latter two cases were decided before Slaight.
However, they continue to be cited by the Supreme Court of Canada, and Therens was relied on by
the majority in the more recent Orbanski/Elias decision (ibid.).
64 Highway Traffic Act, S.M. 1985-86, c. 3, C.C.S.M. c. H60.
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details regarding police officers encounters with motorists was impractical in a
scheme aimed at reducing drinking and driving.65
In contrast, the provisions at issue in Therens and Thomsen involved grants of
weak discretion. Officers were required to comply with certain statutory conditions
before demanding that a driver take a Breathalyzer test (in Therens), or requiring a
motorist to provide a roadside breath sample (in Thomsen). In each case, the Court
interpreted the statutory language to determine whether the officers failure to inform
the driver of the right to counsel was necessarily implied by the enabling
legislation. In Therens, the majority held the provision was sufficiently open-ended
not to necessarily imply denial of counsel. Therefore, the officers conduct was not
prescribed by law and section 1 was unavailable. The Charter challenge succeeded.66
In Thomsen, slightly different wording led the Court to conclude that denial of
counsel was necessarily implicit in the provision and the officers conduct was
prescribed by law.67 The Crown succeeded in justifying the law under section 1 and
the Charter challenge failed.68
The different analyses applied in these three cases demonstrate how subtle
nuances in language can impact the interpretation of grants of weak discretion,
thereby skewing the prescribed by law analysis. Orbanski/Elias is easily explained
under the Slaight framework as a scenario-two case, involving an imprecise grant of
discretion. Thomsen fits the framework as a scenario-one case, in which the enabling
provision necessarily implied the power to infringe the motorists right to counsel.
However, Therens does not fit the Slaight framework. How could the relatively
narrow grant of discretion in Therens fail to be prescribed by law where the much
broader discretion in Orbanski/Elias succeeded? We are left with a curious matrix:
65 Supra note 51 at para. 43.
66 S. 235(1) of the Criminal Code authorized the officer to demand forthwith or as soon as
practicable that a driver take a breathalyzer test where the officer had reasonable and probable
grounds to believe that an offence had been committed within the preceding two hours (R.S.C.
1970, c. C-34, s. 235(1), as am. by S.C. 1974-75-76, c. 93, s. 16(1) [Criminal Code 1970]). In
Therens, Le Dain J., for the majority, found that the officer could have arranged for counsel and still
have met the two-hour requirement in this provision (supra note 50 at 645).
67 Supra note 63. Section 234.1 of the Criminal Code 1970 authorized the officer to require a
motorist to provide a breath sample forthwith by means of a road-side screening device (ibid., as
am. by S.C. 1974-75-76, c. 93, s. 15). LeDain J. held, this time, that the words road-side and
forthwith were inconsistent with the officer giving the motorist time to contact legal counsel
(Thomsen, ibid. at 653).
68 Ibid.
2008]
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Table 1:
Thomsen
More constraints in
enabling provision
Therens
Few constraints in
enabling provision
Orbanski/Elias
Even fewer
constraints in
enabling provision
Provision lying
somewhat closer to
law end of
spectrum
Prescribed-by-
law condition
met
Provision lying in
middle of
law/discretion
spectrum
Provision lying
much closer to
discretion end of
spectrum
Prescribed-by-
law condition not
met
Prescribed-by-
law condition
still met
This dichotomy might be explainable if the Court had decided that Therens and
Thomsen, both decided pre-Slaight, were no longer of precedential value. But the
Court continues to rely on these earlier decisions. The majority in Orbanski/Elias
cited Therens and reasoned that the officers conduct was prescribed by law because
it was necessarily implicit in the operating requirements of the statute.69 This is
simply inaccurate. The officers decision to deny the accused the right to counsel was
not necessarily implicit in the provision in the sense commonly understood in a
statutory-interpretation exercise. The limit was not precluded by the language of the
provision but neither was it included; the officers conduct was simply an exercise of
discretion under neutral enabling legislation, as contemplated by scenario two of the
Slaight framework.70
The inconsistency in these decisions is due to the fact that in each case the Court
was required to make a categorical choice as to whether the Charter limit was
contained within the law or within a discretionary decision, with a completely
different prescribed by law analysis depending on the result. In Therens and Thomsen,
both cases of weak discretion, the Court located the Charter limit within the law and,
accordingly, conducted a statutory interpretation exercise of the standards contained
69 Supra note 51 at para. 43.
70 LeBel J., dissenting in Orbanksi/Elias, made this same point, stating that
contrary to the situation in Thomsen, the power to request sobriety tests or to put
questions to the driver regarding his or her consumption is found nowhere in the
statutes, not even implicitly or by giving them a broad interpretation. The operational
requirements are not used to interpret the statute but seem to merge into the content of
and justification for the common law rule, which, according to the Crowns argument,
already exists and would in any event authorize the action of the police officers on the
street or at the roadside (ibid. at para. 79).
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within the law, with no deference to the officers preliminary interpretation of his or
her own scope of authority. In Orbanski/Elias, the Court recognized the discretionary
nature of the officers decision and, although it purported to locate the Charter limit
within the operating requirements of the law, the effect of the analysis was to accord
full deference to the officers own assessment of his authority. The point to recognize
in this collection of cases is that the statutory grants of discretion in each differed only
in degree, not in nature. Because the Court was constrained by an artificial bright-line
boundary between law and discretion, it was unable to apply a consistent analysis
taking all three cases into account.
The Courts failure to incorporate a variable conception of discretion in its
prescribed by law jurisprudence has also led to inconsistent results and analytical
confusion in more traditional administrative weak-discretion cases. The most
egregious example is the decision of a deeply divided Court in Committee for the
Commonwealth v. Canada.71 At issue was the decision of an assistant manager of an
airport to prohibit the applicant political organization from recruiting passersby in the
airport. The assistant manager purported to act under section 7 of the Government
Airport Concession Operations Regulations,72 which prohibited any business or
undertaking as well as advertis[ing] or solicit[ation] taking place in airports,
except as authorized by the minister of transport.73 Although framed as a prohibition,
the provision for ministerial authorization effectively gave the minister broad
discretion to regulate these activities. The Regulations did not specifically refer to
political propaganda. However, the assistant manager relied on an internal directive
that interpreted the Regulations to prohibit political-propaganda activities. The Court
held that the applicants freedom of expression had been violated and that the
prescribed by law condition was not met in the circumstances. Unfortunately, the
Court was divided in its approach to the prescribed by law issue and no clear majority
decision was reached on this issue.
Justice LHeureux-Dub viewed the issue as one of vagueness in the language of
the Regulations and concluded that the broad language failed to offer an intelligible
standard allowing citizens to regulate their conduct. She disregarded the
administrative process as a meaningful avenue for an individual to determine the
scope of the prohibition. One might expect that a letter to the minister seeking an
exemption under the Regulations would be sufficient for this purpose. Instead, Justice
LHeureux-Dubs view was that the option of seeking ministerial approval only
served to exacerbate the vagueness problem.74 Her analysis therefore proceeded under
71 Supra note 51.
72 S.O.R./79-373 [Regulations].
73 Ibid., s. 7.
74 Committee for the Commonwealth, supra note 51 at 209-15. LHeureux-Dub J. added a final,
brief paragraph indicating that the same conclusion applied to the policy of the government (ibid. at
215). The internal directive and the governments decision showed that the policy was clearly that
practically no form of expression would be permitted on the Dorval Airport premises (ibid. at 224).
499
S. GRATTON ADMINISTRATIVE LAW AND THE CHARTER POST-MULTANI
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scenario one of the Slaight framework, but because of the vagueness of the provision,
a statutory-interpretation exercise was impossible and the law was held to be
unconstitutionally vague.
Justice LHeureux-Dubs reasoning turned on the fact that section 7 of the
Regulations was phrased as a prohibition subject to ministerial exemptions, rather
than as a positively worded conferral of regulatory power on the minister. This choice
of language meant that the limit on freedom of expression was express on the face of
the Regulations. She explained:
When a law can be read, in effect, as an attempt to eradicate all types of
expression, and at the same time be read more narrowly to exclude only certain
types of expression, the citizen does not know what to do. In all likelihood, the
person will exercise caution.75
Justice LHeureux-Dubs vagueness analysis might well have proceeded
differently in the case of a slightly altered provision, even one having exactly the
same administrative effect. For example, compare the following two provisions: first,
the real text of section 7 of the Regulations, and second, a hypothetical alternative:
7. … except as authorized in writing by the Minister, no person shall
(a) conduct any business or undertaking, commercial or otherwise, at an
airport;
(b) advertise or solicit at an airport on his own behalf or on behalf of any
person; … 76
7. An application to conduct any business or undertaking, commercial or
otherwise, or to advertise or solicit on ones own behalf or on behalf of any
person, shall be made to the Minister, who may allow such activities subject
to any conditions that the Minister considers to be just and equitable.
The second provision would not limit freedom of expression per se but, instead,
would confer discretion on the minister to regulate the business carried out in airports.
This alternative wording bears closer resemblance to the provision at issue in
Slaight.77 Justice LHeureux-Dubs analysis in Committee for the Commonwealth
can only be reconciled with Slaight if there is some meaningful distinction to be
drawn between these two versions of section 7if it is somehow significant that the
first is worded restrictively, as a prohibition subject to exceptions, and the second is
worded affirmatively. But in both cases, the scope of discretion accorded to the
minister is exactly the same. And in both cases, the individual is required to engage in
the administrative process before he or she can practically ascertain whether or not
However, she chose not to rest her decision on this as applied approach but held instead that the
Regulation itself failed the prescribed by law condition (ibid. at 225).
75 Ibid. at 213.
76 Supra note 72.
77 Code, supra note 53.
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his or her freedom of expression is to be limited. No logical distinction can be drawn
between these two provisions.78
Justice LHeureux-Dubs reasoning demonstrates how difficult it is in practice to
determine whether, or the extent to which, a legislative provision is intended to confer
discretion onto an administrative delegate. Although there is no principled distinction
between the language adopted in section 7 of the Regulations and the hypothetical
alternative, the semantic difference may influence the determination of whether or not
the provision is prescribed by law under section 1.
The arbitrariness of the Slaight framework is further demonstrated in the
divergent analyses adopted by Chief Justice Lamer and Justice McLachlin in
Committee for the Commonwealth.79 Chief Justice Lamer effectively chose scenario
two under the Slaight framework. He decided that section 7 was capable of a sensible
construction but, in his view, the provision did not give the minister the power to
prohibit non-commercial undertakings such as the political propaganda activities of
the plaintiffs.80 Therefore, the assistant manager had exceeded his statutory authority
by applying the directives and his decision was not prescribed by law.81
In her reasons, Justice McLachlin took yet a third approach to the prescribed by
law analysis. She interpreted section 7 of the Regulations more broadly than did
Chief Justice Lamer, but unlike Justice LHeureux Dub, she did not find the
provision to be unconstitutionally vague. Instead, she shifted to an administrative
discretion analysis and away from section 7 altogether. In this sense, she also
78 This same semantic distinction likely explains the incorrect reasoning in the Ontario Film
decision (supra note 50). David Mullan has attempted to reconcile the Charter cases involving
administrative discretion by distinguishing between cases involving discretionary provisions that
trad[e] explicitly in Charter rights and freedoms and those involving more neutrally worded
discretionary provisions. See The Charter and Administrative Law (The Isaac Pitblado Lectures,
delivered at The University of Winnipeg, 23 November 2002), in The Charter: Twenty Years and
Beyond (Winnipeg: The Fort Garry, 2002), c. X at X-24 to X-27). In my view, this distinction
describes the problem rather than providing its solution. As the example above illustrates, a slight
change in wording can be effective to mask an intended Charter limit, causing functionally similar
provisions to be analyzed differently under the prescribed by law condition.
79 Supra note 51.
80 Ibid. at 159-64. Lamer C.J.C. applied the presumption of constitutionality in support of this
narrow interpretation. He essentially read down the Regulations (supra note 72) to bring them in line
with the Charter. The technique of reading down is more commonly used to remedy Charter
violations held to be unjustifiable under s. 1 of the Charter. Lamer C.J.C. used it to prevent a s. 1
analysis from taking place. This is circular reasoning: s. 7 of the Regulations is deemed to be
constitutional, therefore the ministers decision does not fall under s. 7, therefore the decision is not
constitutional.
81 Ibid. at 164. Although Lamer C.J.C. did not adopt the language of administrative jurisdictional
error, it can be inferred from his reasons that he applied a correctness standard of review and
concluded that the assistant managers decision was ultra vires. In other words, both the ministers
own interpretation of the provision as set out in the directive and the assistant managers decision to
apply the directive were irrelevant to his analysis.
S. GRATTON ADMINISTRATIVE LAW AND THE CHARTER POST-MULTANI
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effectively chose scenario two under the Slaight framework.82 However, Justice
McLachlin found that the assistant manager had been acting within his discretionary
authority and this was sufficient to meet the prescribed by law test. She concluded
with a warning against interpreting the prescribed by law condition too strictly:
501
From a practical point of view, it would be wrong to limit the application of s. 1
to enacted laws or regulations. That would require the Crown to pass detailed
regulations to deal with every contingency as a pre-condition of justifying its
conduct under s. 1. In my view, such a technical approach does not accord with
the spirit of the Charter and would make it unduly difficult to justify limits on
rights and freedoms which may be reasonable and, indeed, necessary.83
We are left with the availability of a section 1 justification depending on this
highly arbitrary choice of whether the case involves law or discretion. Because
Justice LHeureux-Dub located the Charter limit in the law, her prescribed by law
analysis proceeded very differently than did Chief Justice Lamers analysis. Although
both judges concluded that the prescribed by law test was not met on the facts, this
consistent outcome was merely fortuitous. Like Chief Justice Lamer, Justice
McLachlin located the Charter limit in the assistant managers discretion. However,
her reasoning led to the opposite result. The grant of authority in Committee for the
Commonwealth was a classic example of weak discretion constrained by statutory
conditions that must be interpreted and applied by administrators in order to give
effect to the provision. As a result of the Slaight framework and its categorical
distinction between law and discretion, the Court vacillated between viewing this
power as either pure law or pure discretion, with no option in between and with a
deeply divided outcome as a result.84
This same problem has continued to plague the Court in more recent Charter
cases involving weak discretion, albeit in a remedial context. The Slaight framework
has created such confusion that plaintiffs have learned to plead that both a particular
administrative decision as well as the underlying enabling legislation have infringed
their Charter rights.85 In this way, both analytical options are engaged and there is no
82 Ibid. at 244. McLachlin J.s reasoning is consistent with scenario two under the Slaight
framework, although she chose to focus on the discretionary authority granted to the Crown as
property owner under the Civil Code of Quebec, rather than the discretionary grant of authority under
s. 7 of the Charter. It may be that McLachlin J. was reluctant to interpret s. 7 as a statutory grant of
discretion simply because it was worded on its face as a prohibition subject to an administrative
exception rather than as a direct grant of discretion. As I argue above, this is a distinction without a
difference but one leading to very different outcomes on the prescribed by law analysis.
83 Ibid. at 245.
84 Marc Ribeiro also identifies Committee for the Commonwealth (ibid.) as an example of the
problematic tendency of courts to confuse vagueness and discretion. However, Ribeiro himself adopts
an oversimplified concept of discretion by describing this case as involving no norms at all (supra
note 41 at 128).
85 This was the case both in Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
(2000 SCC 69, [2000] 2 S.C.R. 1120, 193 D.L.R. (4th) 193 [Little Sisters]) and Suresh (supra note 4).
Before Little Sisters, the choice of whether to locate an alleged limit on Charter rights in a law or a
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need for the Court to make a choice under the Slaight framework for the purpose of
applying the prescribed by law condition. However, the same choice arises again,
later on in the Charter analysis, when the time comes to grant a remedy. Here again,
the Court remains deeply divided.86
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E. A Purposive Approach to the Prescribed by Law Condition
The incoherence of the prescribed by law jurisprudence illustrates how the
categorical distinction between law and discretion required by the Slaight framework
breaks down in any case where the exercise of weak discretion results in an alleged
limitation of Charter rights. The problem is that a conceptual demarcation between
law and discretion is simply not possible, except at the extremes of the law/discretion
spectrum. All limitations of Charter rights necessarily occur as a result of some
combination of legal authority and discretionary application. This is why vague law
has periodically been confused with administrative discretion. In one sense, laws
conferring broad administrative discretion are vaguely worded, and in turn, vague
laws allow for broad law-enforcement discretion.
However, it remains essential to distinguish between law and discretion for the
purpose of Charter review, both in order to carry out the prescribed by law analysis in
section 1, as well as at several other stages in the Charter analysis. This is because the
theory behind the judicial review of Charter limits in law is incompatible with the
theory behind the review of administrative discretion.
In the case of a vaguely worded law, the court proceeds on the theory that the
legislature intends to create meaningful standards for regulating conduct. Because
language is inherently imprecise, the intended meaning of these standards may be lost
when they are translated into legislative form. In other words, vague laws represent
legislative failure, and the courts role is to apply the principles of statutory
interpretation to discover lost legislative intent or, where this is not possible, to strike
discretionary decision seems to have been made most often by plaintiffs counsel in framing the
pleadings, and courts had often simply followed counsels lead. This seems to have been the case
before the lower courts in Eldridge, for example. The constitutional questions stated on appeal to the
Supreme Court of Canada made no reference to the possibility that the Charter limit was contained in
the governments discretionary decision rather than in the enabling legislation (supra note 51 at para.
17). The Court ultimately held otherwise.
86 In Little Sisters, the Court was split six to three over the issue of whether the Charter remedy
should be limited to the specific decisions found to have caused the Charter infringement, or whether
the underlying legislation should be struck down (ibid.). In Suresh, the Court directed its Charter
analysis at both the legislation and the ministers decision, but it defined the remedial issue solely in
terms of the ministers decision (supra note 4 at para. 25). Furthermore, the Courts two-pronged
analysis in Suresh led into contradiction. On the one hand, the Court held it appropriate to accord
deference to the ministers decision (ibid. at paras. 39, 41). On the other hand, by undertaking its own
interpretation of the legislation in the abstract, the Court essentially repudiated the ministers
discretionary role in carrying out this interpretive exercise on an as applied basis (ibid. at paras. 80-
99).
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the law down under the vagueness doctrine.87 The focus of this exercise is whether or
not the enabling provision can be given a sensible construction in the abstract. In this
sense, it is a forward-looking exercise. No consideration is given to how the law has
been interpreted and applied by the delegate charged with its application.
When a court is faced with an express conferral of administrative discretion, the
theory of the court is that the legislature purposively left the provision open-ended.
The legislature intended to leave some role in the creation of standards to the
delegate, whether because of a desire for flexibility, technical expertise, or some other
reason.88 There is no legislative failure in this case but, rather, an intentional
delegation, and the role of the court is to determine the exact scope of the delegates
authority. This will involve a statutory interpretation exercise, but unlike the case of
law, this interpretive role may involve some degree of deference to the delegates
preliminary decision under the principles of administrative law. Furthermore, the law
is interpreted in the specific context of the decision taken by the delegate. In other
words, the court engages in a backward-looking exercise with the benefit of a real-life
example.
The different theories about vague laws and administrative discretion have
important implications for Charter review. I have noted that one such implication is
remedial. In cases involving an express grant of administrative discretion, the court
must make an initial choice whether to direct its analysis at the law granting
discretionary authority (facial review) or at the decision made under the law (as
applied review).89 If the Charter analysis is applied to the legislation itself, a finding
of infringement renders the law of no force and effect under section 52 of the
Constitution Act, 1867.90 If, however, the analysis is applied to the discretionary
decision, the resulting remedy may be directed at the decision with the legislation
remaining intact.91 Of course, the constitutional remedy available in the case of an
unconstitutionally vague law is necessarily directed at the law itself.
87 Of course, the presumption that legislative intent exists is often a fiction. Legislators may equally
choose to use open-textured language in order to leave flexibility in the interpretation of a provision.
See e.g. La Forest J.s dissent in Reference Re Remuneration of Judges of the Provincial Court of
Prince Edward Island; Reference Re Independence and Impartiality of Judges of the Provincial Court
of Prince Edward Island ([1997] 3 S.C.R. 3 at 181, 156 Nfld. & P.E.I.R. 1) and John Willis
delightfully pragmatic description of legislative intent in Statute Interpretation in a Nutshell ((1938)
16 Can. Bar Rev. 1 at 3-4). The fiction of legislative intent has been considered necessary in order to
provide constitutional legitimacy to the judiciary in ascribing meaning to statutory law.
88 One of my S.J.D. colleagues, Kristen Rundle, has astutely described the difference thus: statutory
interpretation works toward uniformity in the application of a rule, whereas discretion is an
acknowledgement of variety in the application of a rule.
89 See text accompanying note 54.
90 (U.K.), 30 & 31 Vict., c. 3, s. 52, reprinted in R.S.C. 1985, App. II, No. 5.
91 For a discussion of the remedial issues arising from the distinction between Charter limits in law
and those in discretionary decisions, see Rogerson, supra note 40; Ross, supra note 6. Choudhry &
Roach have argued that the remedy of striking down legislation under s. 52(1) of the Constitution Act,
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We have seen that the distinction in how courts approach vague laws and
administrative discretion under the Charter is also crucial in applying the prescribed
by law condition. Here, the distinction leads to diametrically opposite results. In the
case of a vague law, the presumed legislative intent is to prevent vagueness in
meaning. Therefore, the more detailed is the language contained in the provision, the
more likely it is that the law will meet the intelligible standard test and, accordingly,
be prescribed by law. However, if the court characterizes the same case as one
involving administrative discretion, the presumed legislative intent is to allow the
delegate to act within the boundaries of his or her statutory authority. Therefore, the
more detail contained in the provision, the more constrained is the grant of discretion,
and the less likely it is that the decision will be prescribed by law.
The conceptual distinction between vagueness and administrative discretion
becomes muddied in weak-discretion cases, where legislative intent is not clear. Here,
the legislature essentially hedges its bets by granting some degree of statutory
authority to a delegate to interpret the law but stopping short of an express conferral
of discretion. In these cases, it becomes difficult to determine whether the legislature
intended the meaning of the law to be determined by the judiciary or by the delegate.
Courts are left with no clear direction on the extent to which they are to apply a
straight statutory-interpretation analysis to the law and the extent to which they must
defer to the delegates own interpretation.
How, then, does one differentiate between Charter limits in law and in discretion
for the purpose of Charter review? A line must be drawn somewhere along the
law/discretion spectrum, so that Charter limits on one side may be reviewed as law
and those on the other side may be reviewed as discretion. The question becomes
how best to draw this line given the reality that law and discretion will blend into one
another in the middle ground.
In my view, the best approach is one that attempts to keep faith with the different
purpose fulfilled by the prescribed by law analysis in each context. Where the
legislature has chosen to delegate a decision-making function to an administrative
official, then regardless of the particular mix of statutory standards and discretion
contained in the enabling legislation, the purpose of the prescribed by law analysis is
to ensure that the decision maker acts within the scope of his or her authority. This is
an entirely different role from that played by the prescribed by law analysis in the
context of a law for which the court seeks to ascribe meaning to legal standards. If
these different purposes of the prescribed by law analysis are kept in mind, then the
courts initial choice between reviewing a Charter limit as law or as discretion
becomes somewhat more predictable.
1867 should be available even where a Charter violation results from a discretionary decision (supra
note 6 at 18-22). Pottie & Sossin propose that soft-law instruments be given legal status for the
purpose of Charter scrutiny, again in order to make s. 52(1) available to remedy such cases (supra
note 24). See also Sossin, supra note 6.
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Under a purposive approach to the prescribed by law condition, the initial
question to be asked in a Charter case is whether the law at issue was intended to be
interpreted by the court, or whether it was intended, preliminarily at least, to be
interpreted and applied by an administrative delegate. If the former, then the law
meets the prescribed by law condition so long as it is not unconstitutionally vague
according to the intelligible standard test. If the latter, then the prescribed by law
condition becomes an issue of statutory authority in administrative law.
Only where the legislature has intended for statutory standards to be conclusively
interpreted by the courts should the analysis be one of vagueness. When an
administrative delegate is granted any degree of administrative discretion, no matter
how constrained by statutory standards, the prescribed by law analysis is one for
administrative law. The focus must be on the administrative decision itself rather than
the legislative provision, and the issue for the court is whether or not the decision was
statutorily authorized. This determination will require a statutory interpretation of the
enabling provision and any standards set out therein. But this exercise must be
conducted through the lens of the standard-of-review analysis so that an appropriate
degree of deference is applied to the administrators own interpretation and
application of the law.
The standard-of-review analysis was developed specifically because the
legislature sometimes intends that deference be given to its delegates interpretation
and application of his or her enabling statute. Practically speaking, most cases of
administrative discretion never reach the courts, and most individuals whose lives are
affected by administrative activity never have the benefit of a judicial interpretation
of enabling legislation. For those individuals, the delegates own interpretation of the
legislation is the law. Where that decision results in a limitation of Charter rights,
then the prescribed by law analysis must focus on that decision.
Of course, this purposive approach to the distinction between law and discretion
can never entirely eliminate the problem of weak discretion. At the heart of the
distinction remains the problem of identifying legislative intent. Legislative intent
itself becomes indeterminable in the middle ground of the law/discretion spectrum.
However, by adopting a purposive approach, courts at least lay bare the theory hidden
under the categorical Slaight framework, so that the appropriate prescribed by law
analysis becomes much clearer. The application of a purposive approach to the weak-
discretion cases discussed above is relatively straightforward. Ontario Film,
Committee for the Commonwealth, Suresh, and Little Sisters Book and Art Emporium
v. Canada (Minister of Justice) were all administrative discretion cases because the
legislation in each case expressly designated an administrative delegate charged with
applying the legislative scheme.92 In contrast, decisions such as Irwin Toy Ltd. v.
92 Ontario Film, supra note 50; Committee for the Commonwealth, supra note 51; Little Sisters,
supra note 85). I would also argue that the three police cases, Therens (supra note 50), Thomsen
(supra note 63), and Orbanski/Elias (supra note 51) were best analyzed as administrative discretion
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Quebec (A.G.)93 and Osborne involved legislation setting out statutory standards
without any express delegation of the responsibility to apply them.94 These were best
dealt with as Charter limits involving law.
A purposive approach to the prescribed by law analysis would likely result in a
greater number of weak discretion cases being treated as Charter limits involving
discretion rather than Charter limits in law. In other words, the effect would be to
shift the analytical dividing line between law and discretion toward the law end of the
spectrum so that more cases would fall within the discretion side of the boundary. The
prescribed by law analysis in these cases would then turn on an administrative law
inquiry about statutory authority, with some degree of judicial deference applied. In
my view, the result would be to fine-tune the balance between judicial and executive
power, making it commensurate with the realities of the twenty-first-century
administrative state.95
Some administrative law scholars have argued in favour of shifting the boundary
between law and discretion in the opposite direction, by expanding the notion of law
to include cases falling along the middle ground of the spectrum. For example, Lorne
Sossin argues that soft-law instruments used to structure discretionary decision
making should themselves be subject to Charter scrutiny.96 The possibility of striking
down infringing soft law instruments would be helpful, particularly in social-welfare
cases, which too often go unremedied.
Although Sossins proposal is aimed specifically at the issue of remedy, it would
also assist in rationalizing the prescribed by law jurisprudence by clearly allocating
into the law category those weak-discretion cases involving policy guidelines.
However, this would be a partial solution at best. Ultimately, Sossins proposal
remains a categorical approach, albeit one with redefined categories. The question
would eventually arise: where does soft law end and discretion begin? The addition
cases. In contrast to a more typical law-enforcement decision, the decisions by the police officers in
Therens, Thomsen, and Orbanski/Elias were not merely decisions to refer a matter to be decided by
another authority. These were true administrative discretionary decisions in the sense that the
legislation delegated primary decision-making authority to the officers.
93 [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577.
94 Ibid.; Osborne, supra note 42.
95 I refer here to the perennial debate among administrative law theorists about the role of deference
in the judicial review of government action. The prevailing position is one of deference as respect
rather than deference as submission, which roughly translates to relatively less deference,
particularly where human rights are engaged. See David Dyzenhaus, The Politics of Deference:
Judicial Review and Democracy in Michael Taggart, ed., The Province of Administrative Law
(Oxford: Hart, 1997) 279; Mullan, Deference, supra note 31. The analytical shift I am proposing in
the prescribed by law analysis would require a relatively minor but conceptually important step in the
opposite direction. In Suresh, for example, the prescribed by law analysis would turn on the
reasonableness of the ministers deportation order in relation to her statutory authority, rather than on
the intelligibility of the enabling provision in the abstract. The extension of deference to the prescribed
by law inquiry in such cases should not typically affect the availability of a s. 1 justification.
96 Sossin, supra note 6 at 479-83; Pottie & Sossin, supra note 24.
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of soft law to the possible locations for situating Charter limits actually illustrates the
weakness of the categorical approach. Sossin discusses the example of Little Sisters,
where the majority of the Court located the Charter limit in the discretionary
decisions of customs officers. In contrast, the minority would have located the
Charter limit in the enabling customs legislation. Sujit Choudhry & Kent Roach have
argued in favour of the minority approach.97 Sossin would have located the Charter
limit in the guidelines.98 The controversy itself demonstrates that there is no longer a
clear consensus on what constitutes law. This problem is not limited to the Charter
context, but is a more fundamental problem of administrative law theory and, I
suggest, should be addressed within this theoretical framework.99
The example of prescribed by law jurisprudence informs our understanding of the
relationship between the Charter and administrative law more generally. A
categorical approach to this relationship will not succeed in harmonizing the
principles of Canadian public law any more than it has succeeded within the
prescribed by law context. The Multani decision demonstrates that the categorical
approach continues to be favoured by a minority of the Supreme Court of Canada.
Furthermore, it is not clear that the majority appreciates the broader implications of
its purposive approach. I now turn to a discussion of Multani and to my argument that
the majoritys purposive approach, if consistently applied to administrative decisions
along the law/discretion spectrum, would succeed in rationalizing the conceptual
relationship between the Charter and administrative law.
III. A Purposive Relationship Between the Charter and Administrative
Law
There are a number of points in addition to the prescribed by law condition at
which Charter review and administrative law review may overlap. Multani turned on
another point of intersectionthe analysis to be applied in determining whether a
discretionary decision does, in fact, limit a Charter right.100 Multani involved a school
boards discretionary decision to prohibit a Sikh student from wearing his kirpan, a
ceremonial dagger, to school. The law governing the school board did not address the
issue of weapons, ceremonial or otherwise, but there was no question that the boards
decision was authorized under its jurisdiction to approve rules of conduct and
safety measures.101 The student and his family challenged the decision as an
97 Supra note 6.
98 Supra note 6.
99 This issue is one focus of my current doctoral work.
100 Supra note 2
101 The law at issue in Multani (ibid.) was s. 76 of Quebecs Education Act, which provides in part,
The governing board is responsible for approving the rules of conduct and the safety measures
proposed by the principal (R.S.Q. c. I-13-3, s. 76). The boards Code de vie approved pursuant to this
provision prohibited the carrying of weapons or dangerous objects. The Code de vie appears to have
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infringement of his freedom of religion. The Supreme Court of Canada was
unanimous in allowing the challenge and striking down the boards decision but was
sharply divided on the analytical framework to be applied in reaching this result.102
Justice Charron, writing for a five-member majority of the Court, held that even
though the case involved an administrative decision rather than a law, a Charter
analysis rather than an administrative law analysis should be adopted in determining
whether or not the Charter violation was established. The central issue in the case
was whether or not the boards decision complied with the requirements of the
Charter. As such, it was inappropriate to apply an administrative law standard of
review in determining this issue. Justice Charron warned against constitutional law
standards being dissolved into … administrative law standards.103
Justices Deschamps and Abella wrote a minority opinion taking an entirely
different analytical path to the same conclusion. They determined that an
administrative law review should be conducted instead of a Charter review because
the instrument being assessed by the Court was an administrative decision rather than
a norm of general application,104 such as a law, regulation, or other similar rule of
general application.105 In their view, laws cannot be equated with decisions, and an
administrative law analysis is important in the case of the latter in order to prevent the
erosion of the specific analytical tools developed by the Court in response to
administrative decision making. The minority would have chosen a standard of
review of reasonableness, but would have applied this standard to hold that the
boards decision to disregard the students freedom of religion was unreasonable in
the circumstances. According to the minority, the deferential standard of review
applied in reviewing the boards decision stood in place of a section 1 analysis under
the Charter.
The opposing analytical paths chosen by the majority and minority judges in
Multani have brought to a head the long-standing need for a coherent theory
governing the relationship between the Charter and administrative law. The minority
opinion makes it clear that any such theory must recognize and accommodate the
conceptual tension existing between law and discretion.
been a non-binding soft law instrument. See Sossin, supra note 6 at 466-67; Pottie & Sossin, supra
note 24.
102 The majority decision applying a constitutional analysis was written by Charron J. and adopted
by McLachlin C.J.C., and Bastarache, Binnie, and Fish JJ. (ibid. at paras. 1-83). Deschamps, Abella,
and LeBel JJ. concurred in the result but wrote two separate minority reasons. Deschamps and Abella
JJ. would have applied an administrative law analysis to reach the same decision (ibid. at paras. 84-
139). LeBel J. essentially agreed with the majority that a constitutional analysis was appropriate but
would have tweaked the Oakes test slightly in cases involving administrative decisions (ibid. at paras.
140-55).
103 Ibid. at para. 16.
104 Ibid. at para. 103.
105 Ibid. at para. 85.
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The two possibilities offered by the majority and minority judges encapsulate the
same purposive and categorical approaches discussed in relation to the prescribed by
law condition. Although not expressly described as such, Justice Charrons decision
to apply a Charter analysis to the issue of infringement was based on a purposive
approach to the relationship between the Charter and administrative law. In her view,
the role of Charter review is to define the scope of the protection of rights and
freedoms guaranteed by the Charter.106 The role of administrative law review is to
determine whether or not administrative decision makers have acted within the
jurisdiction set out in their enabling legislation.107 The analysis to be applied depends
on the primary reason why the judicial-review exercise is before the Court.108
In contrast, the minority opinion posited a categorical relationship between the
Charter and administrative law, which would turn on the type of government activity
at issue. In their opinion, the analysis developed under the Charter is intended only to
address norms or rules of general application. Administrative law is intended to
address individual adjudicative decisions. Therefore, where an alleged limitation of
Charter rights is at issue, the applicable analysis should depend on whether the limit
results from a law or from an administrative decision.109
The minoritys categorical approach should appear familiar. It relies on the same
bright-line distinction between law and discretion that has proved so disastrous in the
prescribed by law context, and it is unworkable here for the same reason.110 In fact,
the minority itself had difficulty articulating the categorical distinction on which it
relied. It is unclear, for example, whether the minority would have included non-
binding policy instruments within the definition of law.111 Justices Deschamps and
Abella suggested in their conclusion that, had a provision of the Code de vie, the
schools code of conduct, been challenged by the applicant, a section 1 analysis
would have been appropriate.112 Assuming that the Code de vie was a policy
instrument, the minority is suggesting that soft law should have legal status for
Charter purposes, a position that is contrary to the Courts decision in Little Sisters.113
Whether or not this is what the minority intended, the point is that some ambiguity is
already apparent. Soft law lies somewhere along the law/discretion spectrum and is
categorically neither one, nor the other.
106 Ibid. at para. 16.
107 Ibid. at paras. 18-19.
108 Of course, one may lead to the other, since an administrative decision that violates a Charter
right and is not justified under s. 1 will, for that reason alone, be statutorily unauthorized.
109 Multani, supra note 2 at para. 128.
110 The minoritys reference to Therens (supra note 50) and to articles dealing with statutory
vagueness also suggests that it confuses administrative discretion with statutory vagueness, although
this confusion is not clear from the reasons (ibid. at paras. 114-17).
111 See e.g. ibid. at paras. 85, 103, 112.
112 Ibid. at para. 138.
113 This position would, however, be in line with the approach argued for by Sossin (supra note 6).
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If the minority intended to restrict the definition of law to legally enforceable
instruments in line with the Courts holding in Little Sisters, then it would have drawn
the analytical boundary between law and discretion very close to the law end of the
spectrum. In any case where a law contemplates some residual discretionary authority
to be exercised by a delegate, no matter how minor, a section 1 analysis would be
replaced by administrative law review. This approach would leave relatively few
Charter cases to be dealt with under the Oakes balancing test, and it strikes a false
chord when considered alongside the more expansive view of the Charter expressed
by the Court in other contexts.
line between law and discretion but, also how they would define this distinction:
The problem with the minoritys reasoning is not only where they would draw the
An administrative body determines an individuals rights in relation to a
particular issue. A decision or order made by such a body is not a law or
regulation, but is instead the result of a process provided for by statute and by
the principles of administrative law in a given case. A law or regulation, on the
other hand, is enacted or made by the legislature or by a body to which powers
are delegated. The norm so established is not limited to a specific case. It is
general in scope.114
Elsewhere, the minority described administrative law review as microcosmic
and limited to the needs of individuals. In contrast, Charter review is based on
societal interests.115
These are each surprisingly simplistic descriptions of our modern administrative
state, which ignore the coexistence of law and discretion. The minority would
presumably draw an analytical boundary somewhere along the law/discretion
spectrum based on the quantity, rather than the quality, of interests at stake. Only
collective interests would benefit from directly engaging Charter values. But again,
this point is not conceptually determinable. How would Suresh have been dealt with
under this reasoning? Strictly speaking, the case involved a discretionary decision
affecting an individuals interest in avoiding deportation. However, the law granting
this authority, by imposing key statutory conditions, constrained the ministers
discretion to such an extent that, in deciding the case, the Court focused almost
exclusively on the law itself. Are the interests at stake here individual or collective?
Another
the
Orbanski/Elias decision. There, the Court located the Charter limit within the law but
in effect recognized the need for police to exercise discretion in carrying out their
duties.116 Again, it is impossible to say whether the interests at stake were individual
or collective. The variable relationship between law and discretion makes a bright-
line distinction between collective norms and individual application nonsensical.
the minority approach
testing ground for
interesting
is
114 Multani, supra note 2 at para. 112.
115 Ibid. at para. 132.
116 Supra note 51.
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The minority warns against blurring the distinction between the principles of
constitutional justification and the principles of administrative law. However, this is
exactly what occurs when a categorical distinction is drawn between law and
discretion, rather than focusing on the purpose of the judicial-review exercise taking
place.117 The purpose of the Charter is to scrutinize the content of a law or decision in
order to protect fundamental values. The purpose of administrative law is to
scrutinize the relationship between a government decision and its legislative
antecedent in order to protect democratic accountability. Where a decision affecting
fundamental rights or freedoms is made by someone other than the legislature, it is
the task of administrative law to ensure that it was statutorily authorized. Once this is
established, then the identity of the decision maker should no longer matter for the
purpose of the rights analysis under the Charter. As Justice Charron explained:
[I]t is of little importance to Gurbaj Singhwho wants to exercise his freedom
of religionwhether the absolute prohibition against wearing a kirpan in his
school derives from the actual wording of a normative rule or merely from the
application of such a rule.118
the concerns of
This purposive relationship between
the Charter and
administrative law is implicit throughout the majority decision. Charter review is
intended to identify rights violations, aside from the form of government activity
responsible. Administrative law review is intended to determine whether statutory
delegates are acting within the scope of their authority, aside from the impact of this
action on Charter rights.
Unfortunately, the issue of statutory authority did not arise in Multani; thus, we
do not yet have the benefit of seeing Justice Charrons framework applied in a factual
context. Furthermore, regardless of the strong majority achieved in the Multani
decision, there is good reason to be concerned that the majority has not fully
appreciated the implications of its decision for future cases involving the exercise of
weak discretion. For example, although the majority referred to the Slaight decision
several times with approval, it failed to appreciate that Slaight is inconsistent with its
analysis in an important respect. Recall that Slaight was also a relatively
straightforward case involving broad discretionary power. Both Justice Lamer and
Chief Justice Dickson, for the majority in Slaight, instinctively applied a purposive
approach in those circumstances by addressing the arbitrator’s statutory authority on
an administrative law analysis before turning to the Charter analysis.119 However, we
have seen that Slaight simultaneously calls for a categorical methodology to be
applied to weak discretion cases where it is not clear whether an administrative
decision or legislation is at issue.120 The upshot is that the Court has provided
consistent precedent for the application of a purposive approach to alleged Charter
117 Multani, supra note 2 at para. 85.
118 Ibid. at para. 21.
119 Supra note 39 at 1076-78, Lamer J.; ibid. at 1047-48, Dickson C.J.C.
120 See Part II.C, above.
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limits involving strong discretion. But it has not yet taken the next logical step of
extending this approach to the burgeoning range of midpoints existing along the
spectrum between law and discretion.
Notwithstanding this lingering confusion, if the majority approach in Multani
were applied consistently to Charter cases involving administrative decisions
throughout the law/discretion spectrum, I suggest that it would resolve much of the
existing analytic confusion in the relationship between administrative law and the
Charter. However, there are additional obstacles to overcome. Some administrative
law scholars seemingly reject a purposive relationship between administrative law
and the Charter. For example, David Mullan suggests that the majority approach in
Multani may leave administrative law with an insufficient role to play in reviewing
Charter violations.121 I disagree for the reason expressed by Justice Charron in her
quote above. The rights-based analysis intended by the Charter should not depend on
administrative formalities, such as whether the alleged infringement is a matter of law
or discretion, particularly as these are often inextricably intertwined.
In addition, instead of undermining administrative law, a purposive relationship
between the Charter and administrative law actually operates to preserve the domain
of administrative law from incursions by the Charter. A clear appreciation for the role
of administrative law in protecting democratic accountability would obviate attempts
to have the Charter fill this purpose. For example, Choudhry & Roach argue that
Charter violations carried out by discretionary decision makers should be remedied
by striking down the enabling legislation rather than merely the decision.122 Their
view is that only in this way can government be forced to enact clear legislative
provisions prohibiting discriminatory action on the part of its delegates. I share the
desire to prevent a situation where governments may go underground and
implement many of
through
discretionary decision making, out of sight of the democratic process. 123 However, I
disagree that the Charter was intended to be the primary vehicle for fulfilling this
purpose. This problem calls into question the sufficiency of statutory authority as a
means of controlling discretionary powera concern that lies at the heart of
administrative law. As Justice Charron stated in Multani, we must be on guard to
prevent confusion between the fundamental rights and freedoms guaranteed by the
Charter and mere administrative law principles.124
Martha Jackman also looks to the Charter to address what is properly a concern
for administrative law.125 Jackman argues that the Oakes test in section 1 of the
their constitutionally controversial measures
121 Mullan, After Multani, supra note 6.
122 Supra note 6.
123 Ibid. at 7.
124 Multani, supra note 2 at para. 16. LeBel J. echoed this caution in his minority opinion (ibid. at
125 Martha Jackman, Protecting Rights and Promoting Democracy: Judicial Review under Section
1 of the Charter (1996) 34 Osgoode Hall L.J. 661.
para. 151).
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Charter should be applied to promote democratic values. More deference should be
applied to the section 1 justification exercise when the government has proved that it
decided on a Charter limit only after significant consideration of the policy trade-offs
at issue. Jackman extends this argument to cases involving Charter limits expressly
contained in legislative provisions, in addition to those clearly contained in
discretionary decisions.126
I suggest that, like Choudhry & Roach, Jackman asks too much from the Charter
and, correspondingly, expects too little from administrative law. The democratic
values at play where a Charter limit is contained in a law are fundamentally different
from those at play where a Charter limit is contained in a discretionary decision. In
the latter case, administrative law exists for the very purpose of protecting democratic
accountability. Whether or not administrative law principles are successful for this
purpose may be questioned, but this debate is one properly addressed within
administrative law itself, rather than being usurped by an extension of Charter
doctrine.
Conclusion
Twenty-six years ago, the introduction of the Charter significantly expanded the
role of the judiciary in reviewing both legislative and administrative action. Ever
since, the Charter has exerted a powerful pull over any case that calls either into
question. But the charismatic presence of the Charter should not be permitted to
obscure the very different tensions at play in supervising the relationship between
those legislative and administrative actors. The variable relationship between law and
discretion is one of those tensions.
Administrative law is already tasked with developing an effective means of
controlling the exercise of administrative discretion. This was the very project of the
Court in the Baker decision. There is no reason not to make use of this analytical
approach in applying the Charter. Administrative law and the Charter serve very
separate functions in our legal system.
126 Jackman treats Egan v. Canada ([1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609 [Egan]) and
Eldridge (supra note 51) as examples of cases in which the Court failed to pay adequate attention to
democratic values in applying the Oakes test (ibid.). These cases simply cannot be equated. Egan
involved a clear legislative provision adopted by Parliament (ibid.). Whether or not the circumstances
of same-sex couples at issue in that case were directly or carefully considered in the legislative
debates, the provision was passed and became law, thereby gaining a certain degree of democratic
legitimacy. In contrast, Eldridge involved a discretionary decision made by a ministry official without
any legislative or regulatory framework but with significant consequences for hearing-impaired
patients within British Columbias public health system (ibid.). The arguably arbitrary circumstances
in which that decision was made raise significant administrative law concerns about democratic
legitimacy in addition to the Charter issues addressed by the Supreme Court of Canada.
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The majority in Multani took the first step toward recognizing these different
functions and allowing administrative law concerns to be addressed within their
proper forum. It is ironic that the majority preserved this territory for administrative
law in the course of reasons that otherwise downplayed the role of administrative law
in the Charter analysis. Conversely, the minority purported to protect the
sophisticated analytical tools of administrative law while effectively eradicating them
in favour of an outdated bright-line distinction between law and discretion. Chief
Justice Dickson acknowledged in Slaight that it would take time and the example of
particular cases to work out the precise relationship between administrative and
Charter review.127 Thus far, the Supreme Court of Canada seems to have been feeling
its way without fully appreciating the variable relationship between law and
discretion and its significance, not only for the prescribed by law condition, but for
the conceptual coherence of public law as a whole.
The bright spot in this analytical confusion is that the Courts synthesis of years
of confusing and conflicting jurisprudence into two polarized opinions has made the
choice between a purposive and a categorical approach to the relationship between
the Charter and administrative law that much clearer. The lesson of the prescribed by
law jurisprudence, aligned against the navet of the minoritys understanding of
administrative decision making, will hopefully sound the death knell once and for all
on a categorical relationship between the Charter and administrative law.
127 Supra note 39 at 1049