Doré v. Barreau du Québec, (2012) 428 N.R. 146 (SCC)

• Court: Supreme Court (Canada)
• Case Date: January 26, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 428 N.R. 146 (SCC);2012 SCC 12;[2012] ACS no 12;[2012] EXP 1231;[2012] 1 SCR 395;[2012] SCJ No 12 (QL);AZ-50841558;428 NR 146;343 DLR (4th) 193;JE 2012-672

Doré v. Barreau du Qué. (2012), 428 N.R. 146 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.R. TBEd. MR.032

Gilles Doré (appellant) v. Pierre Bernard, in his capacity as Assistant Syndic of the Barreau du Québec, Tribunal des professions and Attorney General of Quebec (respondents) and Federation of Law Societies of Canada, Canadian Civil Liberties Association and Young Bar Association of Montreal (interveners)

(33594; 2012 SCC 12; 2012 CSC 12)

Indexed As: Doré v. Barreau du Québec

Supreme Court of Canada

McLachlinྭC.J.C., Binnie, LeBel, Fish, Abella, Rothstein and Cromwell,ྭJJ.

March 22, 2012.

Summary:

The Disciplinary Council of the Barreau du Québec reprimanded a lawyer for the content of a letter he wrote to a judge after a court proceeding. That decision was upheld by the Tribunal des professions. The lawyer applied for judicial review, inter alia, challenging the constitutionality of the decision, claiming that it violated his freedom of expression (Canadian Charter of Rights and Freedoms, s. 2(b)).

The Quebec Superior Court, in a decision with neutral citation 2008 QCCS 2450, dismissed the application. The lawyer appealed.

The Quebec Court of Appeal, in a decision with neutral citation 2010 QCCA 24, dismissed the appeal. The court acknowledged that the Disciplinary Council's decision was a breach of s. 2(b), but applying a full s. 1 Oakes analysis upheld the decision. The lawyer appealed again. At issue was the appropriate framework to be applied in reviewing administrative decisions for compliance with Charter protections (i.e., whether the s. 1 Oakes framework developed for reviewing laws for compliance with the Constitution or an approach which integrated Charter values into the classic administrative law approach to judicial review was to be used).

The Supreme Court of Canada held that in determining whether administrative decision-makers exercised their statutory discretion in accordance with Charter protections, the administrative law approach was appropriate. The standard of review was reasonableness. In this case, the discipline committee's decision to reprimand the lawyer reflected a proportionate balancing of its public mandate to ensure that lawyers behaved with "objectivity, moderation and dignity" with the lawyer's expressive rights. It was, as a result, a reasonable one. The court dismissed the appeal.

Administrative Law - Topic 8905

Boards and tribunals - Duties of - Re application of constitution or constitutional principles (incl. Charter) - [See all Civil Rights - Topic 8317 ].

Administrative Law - Topic 9102

Board and tribunals - Judicial review - Standard of review - [See second Civil Rights - Topic 8317 ].

Barristers and Solicitors - Topic 2005

Duty to public - General - Duty to conduct oneself with objectivity, moderation and dignity (incl. civility) - During a lawyer's (Dore's) argument and in reasons for decision, a judge levied a number of criticisms against the lawyer, including accusing him of "bombastic rhetoric and hyperbole", "idle quibbling", etc. (see paragraph 9) - The lawyer wrote a letter to the judge in response, attacking the judge's social skills, legal knowledge, accusing the judge of being "loathsome" and "fundamentally unjust", etc. (see paragraph 10) - The lawyer was reprimanded by his law society for his lack of civility (Code of ethics of advocates, s. 2.03) - The lawyer claimed that the decision violated his freedom of expression (Charter, s. 2(b)) - The Supreme Court of Canada stated that to determine this issue it had to consider whether imposition of a reprimand reflected a proportionate application of the statutory mandate with the lawyer's expressive rights - Here, the lawyer's letter went beyond the public's reasonable expectations of a lawyer's professionalism - The court stated that "In light of the excessive degree of vituperation in the letter's context and tone, this conclusion cannot be said to represent an unreasonable balance of Mr. Doré's expressive rights with the statutory objectives" - See paragraphs 59 to 72.

Barristers and Solicitors - Topic 2005

Duty to public - General - Duty to conduct oneself with objectivity, moderation and dignity (incl. civility) - The Code of ethics of advocates (Que.) provided that "the conduct of an advocate must bear the stamp of objectivity, moderation and dignity" - Similar rules were found in the Canadian Bar Association's Code of Professional Conduct and provincial codes of conduct - The Supreme Court of Canada noted that the determination of whether the actions of a lawyer violated art. 2.03 in any given case was left entirely to the Disciplinary Council's discretion - However, dealing with the appropriate boundaries of civility, the severity of the conduct had to be interpreted in light of the expressive rights guaranteed by the Charter, and, in particular, the public benefit in ensuring the right of lawyers to express themselves about the justice system in general and judges in particular - See paragraphs 61 to 63.

Barristers and Solicitors - Topic 2005

Duty to public - General - Duty to conduct oneself with objectivity, moderation and dignity (incl. civility) - The Code of ethics of advocates (Que.) provided that "the conduct of an advocate must bear the stamp of objectivity, moderation and dignity" - Similar rules were found in the codes from across Canada - The Supreme Court of Canada noted that lawyers played a critical role in assuring the accountability of the judiciary - However, that did not mean that lawyers had an unlimited right to breach the legitimate public expectation that they would behave with civility - "We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer's right to expression and the public's interest in open discussion. As with all disciplinary decisions, this balancing is a fact-dependent and discretionary exercise" - See paragraphs 64 to 66.

Civil Rights - Topic 1803

Freedom of expression - Scope of - [See all Barristers and Solicitors - Topic 2005 ].

Civil Rights - Topic 1855

Freedom of speech or expression - Limitations on - Regulation of professionals - Lawyers - [See all Barristers and Solicitors - Topic 2005 ].

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - General - Application - Administrative decisions and Charter protection - The Supreme Court of Canada stated that "It goes without saying that administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values ..." - See paragraph 24.

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - General - Application - Administrative decisions and Charter protection - The Supreme Court of Canada discussed the appropriate framework to be applied in reviewing administrative decisions for compliance with Charter protections - In particular, the court discussed whether the s. 1 Oakes framework developed for reviewing laws for compliance with the Constitution or an approach which integrated Charter values into the classic administrative law approach to judicial review was to be used - The court concluded that the administrative law approach, not the s. 1 Oakes analysis, should be used when reviewing whether administrative decision makers had exercised their statutory discretion in accordance with Charter protections - The standard of review was reasonableness - See paragraphs 23 to 58.

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - General - Application - Administrative decisions and Charter protection - A law society disciplinary body reprimanded a lawyer respecting a letter he wrote to a judge - The lawyer challenged the constitutionality of the decision, alleging a violation of his freedom of expression (Charter, s. 2(b)) - The Supreme Court of Canada noted that this case raised squarely the issue of how to protect Charter guarantees and the values they reflected in the context of adjudicated administrative decisions (i.e., should the decision be reviewed for its reasonableness or did the presence of a Charter issue call for the replacement of that administrative law framework with the Oakes test (s. 1 reasonable limit test)) - The court stated "... that while a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality. I [Abella, J.] see nothing in the administrative law approach which is inherently inconsistent with the strong Charter protection - meaning its guarantees and values - we expect from an Oakes analysis. The notion of deference in administrative law should no more be a barrier to effective Charter protection than the margin of appreciation is when we apply a full s. 1 analysis" - See paragraphs 3 to 5.

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - General - Application - Administrative decisions and Charter protection - The Supreme Court of Canada stated that "In assessing whether a law violates the Charter, we are balancing the government's pressing and substantial objectives against the extent to which they interfere with the Charter right at issue. If the law interferes with the right no more than is reasonably necessary to achieve the objectives, it will be found to be proportionate, and, therefore, a reasonable limit under s. 1. In assessing whether an adjudicated decision violates the Charter, however, we are engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right. In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited" - See paragraph 6.

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - General - Application - Administrative decisions and Charter protection - The Supreme Court of Canada discussed how an administrative decision-maker should apply Charter values in the exercise of statutory discretion - The court stated that the decision-maker had to balance the Charter values with the statutory objectives by first considering the statutory objectives and then asking how the Charter value at issue would best be protected in view of the statutory objectives "This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives. This is where the role of judicial review for reasonableness aligns with the one applied in the Oakes context ... On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play ... Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a 'margin of appreciation', or deference, to administrative and legislative bodies in balancing Charter values against broader objectives. If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable" - See paragraphs 55 to 58.

Civil Rights - Topic 8320.8

Canadian Charter of Rights and Freedoms - General - Application - Law societies (incl. discipline committees) - [See all Barristers and Solicitors - Topic 2005 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See second Civil Rights - Topic 8317 ].

Civil Rights - Topic 8581.2

Canadian Charter of Rights and Freedoms - Practice - Judicial review (incl. standard of review) - [See second Civil Rights - Topic 8317 ].

Cases Noticed:

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 316 B.C.A.C. 1; 537 W.A.C. 1; 425 N.R. 22; 2012 SCC 2, refd to. [para. 7].

R. v. Lanthier, 2001 CanLII 9351 (Que. Sup. Ct.), refd to. [para. 9].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 19].

Chamberlain et al. v. Board of Education of School District No. 36 (Surrey), [2002] 4 S.C.R. 710; 299 N.R. 1; 175 B.C.A.C. 161; 289 W.A.C. 161; 2002 SCC 86, refd to. [para. 24].

Pinet v. St. Thomas Psychiatric Hospital et al., [2004] 1 S.C.R. 528; 317 N.R. 365; 185 O.A.C. 8; 2004 SCC 21, refd to. [para. 24].

Criminal Lawyers' Association (Ont.) v. Ontario (Minister of Public Safety and Security), [2010] 1 S.C.R. 815; 402 N.R. 350; 262 O.A.C. 258; 2010 SCC 23, refd to. [para. 24].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 25].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 25].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 28].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 29].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 30].

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 30].

Stoffman et al. v. Vancouver General Hospital et al., [1990] 3 S.C.R. 483; 118 N.R. 241, refd to. [para. 31].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289; 120 D.L.R.(4th) 12; 25 C.R.R.(2d) 1, refd to. [para. 31].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321; 133 D.L.R.(4th) 385, refd to. [para. 31].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 31].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 150 C.C.C.(3d) 1; 38 C.R.(5th) 209; 193 D.L.R.(4th) 193; [2001] 2 W.W.R. 1; 2000 SCC 69, refd to. [para. 31].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 31].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, refd to. [para. 31].

Trinity Western University et al. v. College of Teachers (B.C.) et al., [2001] 1 S.C.R. 772; 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161; 2001 SCC 31, refd to. [para. 32].

Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72; 280 N.R. 201; 2002 SCC 2, refd to. [para. 32].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 32].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 32].

Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198, refd to. [para. 32].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 36].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 36].

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al., [2009] 2 S.C.R. 295; 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29; 2009 SCC 31, refd to. [para. 37].

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81, refd to. [para. 39].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 40].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 40].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 41].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 44].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 47].

Mooring v. National Parole Board et al., [1996] 1 S.C.R. 75; 192 N.R. 161; 70 B.C.A.C. 1; 115 W.A.C. 1, refd to. [para. 48].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 56].

R. v. Felderhof (J.B.) (2003), 180 O.A.C. 288; 68 O.R.(3d) 481; 180 C.C.C.(3d) 498 (C.A.), refd to. [para. 61].

R. v. Kopyto (1987), 24 O.A.C. 81; 62 O.R.(2d) 449 (C.A.), refd to. [para. 63].

Attorney-General v. Times Newspapers Ltd., [1974] A.C. 273 (H.L.), refd to. [para. 63].

Histed v. Law Society of Manitoba (2007), 225 Man.R.(2d) 74; 419 W.A.C. 74; 2007 MBCA 150, refd to. [para. 64].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 3]; sect. 2(b) [para. 17].

Code of ethics of advocates, R.R.Q. 1981, c.ྭB-1, ruleྭ1, art. 2.03 [para. 14].

Authors and Works Noticed:

Bernatchez, Stéphane, Les rapports entre le droit administratif et les droits et libertés: la révision judicaire ou le contrôle constitutionnel? (2010), 55 McGill L.J. 641, generally [para. 33].

Canadian Bar Association, Code of Professional Conduct (2009), (online: http://www.cba.org/CBA/activities/pdf/codeofconduct.pdf), c. IX, para. 16 [para. 62].

Cartier, Geneviève, The Baker Effect: A New Interface Between the Canadian Charter of Rights and Freedoms and Administrative Law - The Case of Discretion, in David Dyzenhaus, ed., The Unity of Public Law (2004), pp. 68 [paras. 26, 27]; 69 [para. 27]; 75, 86 [para. 19].

Code, Michael, Counsel's Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System (2007), 11 Can. Crim. L.R. 97, p. 101 [para. 61].

Dyzenhaus, David, The Unity of Public Law (2004), pp. 68 [paras. 26, 27]; 69 [para. 27]; 75, 86 [para. 29].

Dyzenhaus, David, and Fox-Decent, Evan, Rethinking the Process/Substance Distinction: Baker v. Canada (2001), 51 U.T.L.J. 193, p. 240 [para. 29].

Evans, J.M., The Principles of Fundamental Justice: The Constitution and the Common Law (1991), 29 Osgoode Hall L.J. 51, pp. 73 [para. 27]; 81 [para. 46].

Flood, Colleen M., and Sossin, Lorne, Administrative Law in Context (2008), p. 100 [para. 29].

Gratton, SusanྭL., and Sossin, Lorne, In Search of Coherence: The Charter and Administrative Law under the McLachlin Court, in DavidྭA. Wright and AdamྭM. Dodek, eds., Public Law at the McLachlin Court: The First Decade (2011), pp. 157 [para. 29, 33]; 158 [para. 29]; 161 [para. 34].

Hogg, Peter W., Constitutional Law of Canada (5th Ed. Supp.) (updated 2010, release 1), vol. 2, sect. 38.15 [para. 39].

Law Society of Upper Canada, Rules of Professional Conduct (online: http://www.lsuc.on.ca/with.aspx?id=671), rule 6.03(5) [para. 62].

Liston, Mary, Governments in Miniature: The Rule of Law in the Administrative State, in Flood, Colleen M., and Sossin, Lorne, Administrative Law in Context (2008), p. 100 [para. 35].

MacKenzie, Gavin, Lawyers and Ethics: Professional Responsibility and Discipline (5th Ed. 2009), pp. 8-1 [para. 61]; 26-1 [para. 63].

Mullan, David, Administrative Tribunals and Judicial Review of Charter Issues after Multani (2006), 21 N.J.C.L. 127, generally [para. 33].

Wright, David A., and Dodek, Adam, Public Law at the McLachlin Court: The First Decade (2011), pp. 157 [para. 29, 33]; 158 [para. 29]; 161 [para. 34].

Counsel:

Sophie Dormeau and Sophie Préfontaine, for the appellant;

ClaudeྭG. Leduc and Luce Bastien, for the respondent Pierre Bernard, in his capacity as Assistant Syndic of the Barreau du Québec;

DominiqueྭA. Jobin and Noémi Potvin, for the respondents Tribunal des professions and the Attorney General of Quebec;

Babak Barin and Frédéric Côté, for the intervener the Federation of Law Societies of Canada;

David Grossman, Sylvain Lussier, Julien Morissette and Annie Gallant, for the intervener the Canadian Civil Liberties Association;

Mathieu Bouchard and Audrey Boctor, for the intervener the Young Bar Association of Montreal.

Solicitors of Record:

Sophie Dormeau, Outremont, Quebec, for the appellant;

Mercier Leduc, Montreal, Quebec, for the respondent, Pierre Bernard, in his capacity as Assistant Syndic of the Barreau du Quebec;

Attorney General of Quebec, Sainte-Foy, Quebec, for the respondents, Tribunal des professions and the Attorney General of Quebec;

BCF, Montreal, Quebec, for the intervener, the Federation of Law Societies of Canada;

Osler, Hoskin & Harcourt, Montreal, Quebec, for the intervener, the Canadian Civil Liberties Association;

Irving Mitchell Kalichman, Westmount, Quebec, for the intervener, the Young Bar Association of Montreal.

This appeal was heard on January 26, 2012, before McLachlinྭC.J.C., Binnie, LeBel, Fish, Abella, Rothstein and Cromwell,ྭJJ., of the Supreme Court of Canada. The following decision was delivered for the court, in both official languages, by Abella, J., on March 22, 2012.