A 2012 Supreme Court decision is having an impact on how the Courts decide cases where people, including prisoners, allege Charter breaches.
This case was decided on March 22, 2012 by the Supreme Court of Canada. It considered the Quebec Bar’s decision to sanction a lawyer for a letter he wrote to a Superior Court Justice.
The matter had some rather amusing attributes that bely truly ominous implications for prisoners who seek review of decisions on Charter grounds.
Me. Dore had been disciplined by the Quebec Bar for the very intemperate letter he had written in response to the Court’s public criticism of his “bombastic” style at the hearings. In his letter to the Court Me. Dore , among other descriptions, said that the Judge was “loathsome, arrogant and fundamentally unjust”.
Ultimately Dore accepted the Bar’s 21 day suspension but maintained that his comments were protected by s.2 of the Canadian Charter of Rights and Freedoms, specifically freedom of expression.
Madam Justice Abella, speaking for the Supreme Court, held that the restriction on Me. Dore’s speech imposed by the Bar administrator’s decision was not contrary to the Charter.
The significance of the Judgment was not the outcome but rather the rather novel applied.
The traditional approach to determining a Charter breach is known as the “Oakes test”. This test requires the government, once it has been found that a Charter breach has occurred, to show thatthe breach was:
a) necessary to meet some “pressing and substantial objective”
b) to which the impugned decision is “rationally connected” and which
c) “minimally impairs” the Charter right involved.
The Court held that this test was not more easily applied where some statute or regulation is alleged to breach the Charter. In such cases the Court has before it the exact terms of the state action that is to be reviewed – it can examine the wording of the legislation and decide whether , in considering the circumstances of the case, this wording goes too far – i.e. it is not justified.
The Court concluded differently, however, where the matter involves not a statute or regulation but rather a decision made by an administrator using his legal authority and discretion. Here there is not a concise written rule to adjudge but rather the way in which an administrator decided the issue..
The Court decided that in reviewing administrative decisions the test is whether the decision-maker has disproportionately restricted the Charter rights involved in taking his decision. Rather than analysing a written rule and its purported justification, the Court should examine the effect of a decision to see if it has “gone over the line” in how much it has restricted a Charter right.
The Court held that there was not a great deal to choose between the principles underlying the two approaches – both sought to balance the rights involved with the government’s objectives in a way that ensures that the rights involved are not unreasonably restricted.
The problem in all this opaqueness is not that the principles of the approaches – and the results – are notionally different. The problem is that the Supreme Court appeared to have opened a perilous door.
It appears that the new ” Dore test” may give administrators more leeway than they had under the Oakes test. By this I mean that the Court seemed to be applying a standard of reasonableness to administrative decisions, even those affected by the Charter.
Most reasonableness standards assume that an administrative decision-maker, as an expert within their field, should not be second-guessed unless they act clearly outside the law. In other words the Court defers to the reasonable decision of the administrator – even if the Court might have decided differently.
If this standard is applied to the Charter prisoners will find it more difficult to prove an actionable breach. Even where basic freedoms are involved, even based on very complex Charter issues, the Warden could be given the benefit of the doubt.
It is true that, Ii the Dore Judgment, Abella J. implied that the review of Charter breaches will still involve a rigouress review. She stated that the nature and scope of the reasonableness standard will differ in the legal circumstances of the case – and the Charter will be a paramount factor in determining reasonableness.
So, perhaps not too much to worry about.
But given the normal deference of Courts in prison cases I think lawyers will have a row to hoe in bringing administrative decisions to heal under the Dore test.