TRENDS IN PUBLIC LAW jurisprudence increasingly require administrative decision-makers to engage with complex human rights concepts in exercising their discretion. This includes not only the Charter but also international human rights sources. The engagement with human rights that is expected of administrative decision-makers is demanding: it is broad in terms of the concepts and sources that could be implicated, flexible in how the concepts could affect the decision, and rigorous in the required analysis. It will likely prove challenging for decision-makers, the people who are subject to their decisions, and the legal community in general.
But there would be real benefits to meeting the challenge head-on. It will be argued that if this vision is realized, administrative proceedings will become an increasingly important venue for the contestation and interpretation of human rights. This amounts to a vision of a more grassroots and decentralized human rights culture in Canada, in which a wider range of individuals would have the opportunity to participate in structured, yet accessible, conversations about rights. Of course, realizing this vision in practice will be challenging. But if more voices are allowed to take part in debate about rights issues, democratic shortcomings in our rights culture could be rectified, and Canada's human rights jurisprudence could benefit from unexpected innovations.
LES TENDANCES DE LA jurisprudence en matiere de droit public exigent de plus en plus des decideurs administratifs qu'ils tiennent compte, en exercant leur pouvoir discretionnaire, des concepts complexes en droits de la personne. Cela implique de puiser non seulement dans la Charte, mais egalement dans les sources des droits de la personne a l'echelle internationale. Cet engagement envers les droits de la personne auquel on s'attend de la part des decideurs administratifs est exigeant: il est vaste en termes de concepts et de sources susceptibles d'etre en jeu encore que flexible dans la maniere dont ces concepts pourraient influencer la decision, tout en imposant de la rigueur dans le processus d'analyse requis. Il y a fort a parier que cet engagement posera des difficultes pour les decideurs et les personnes qui font l'objet de leurs decisions ainsi que pour le milieu juridique en general.
Il y aurait cependant de reels avantages a relever ce defi a bras le corps. Ainsi, dans l'eventualite ou cette vision se realise un jour, les procedures administratives deviendraient un recours de plus en plus choisi pour la contestation et l'interpretation des droits de la personne. La culture des droits de la personne au Canada en serait ainsi plus accessible et decentralisee, et offrirait a un eventail elargi de justiciables la possibilite de participer a des conversations structurees, encore qu'accessibles, au sujet de leurs droits. Certes, mettre cette vision en oeuvre dans la pratique poserait quelques defis, cependant, s'il y avait davantage de voix au chapitre entourant les questions relatives aux droits, nous pourrions combler certaines lacunes de nature democratique dans notre culture en matiere de droits. A cet egard, la jurisprudence canadienne sur les droits de la personne pourrait grandement beneficier d'innovations imprevues.
CONTENTS Engagement with Human Rights by Administrative Decision-Makers: A Transformative Opportunity to Build a More Grassroots Human Rights Culture Dan Moore Introduction 135 I. Trends in Public Law: Human Rights and Administrative Decision-Making 137 A. First Trend: Requirement for Administrative Decision-Making to Reasonably Engage with Charter Rights and Values 138 B. Second Trend: Role of International Human Rights Sources in Administrative Decision-Making 145 C. Third Trend: Reliance on Discretionary "Safety Valves" 148 II. A New Model of Rights Implementation 152 A. Tremendous Challenges 153 B. Real Risks 156 C. Transformative Opportunity to Build a More Grassroots Human Rights Culture 158 Conclusion 162 INTRODUCTION
People have a cognitive bias to use the tools that are most visible to them, and lawyers are hardly immune to this. (1) When it comes to Canada's Constitution, the natural instinct of lawyers is to assume that litigation is how it is enforced and that the judiciary will be the Constitution's interpreter and applier. This bias is only natural: we learn about the law by studying court decisions, and the courts are, generally, the ultimate adjudicator of legal issues.
The first 35 years of the Canadian Charter of Rights and Freedoms (the Charter), (2) in my view, reflect the natural bias of the legal community towards a "judicial enforcement" model of constitutional implementation. (3) The Charter has played a role in tremendous changes to Canadian society, in areas as varied as criminal procedure and the civil rights of minority groups. But these changes have mainly been realized via judicial interpretation and application, and the remedial powers given to the judiciary to enforce Charter rights. While it is also true that the Charter has impacted government policy-making, even these impacts tend to have a clear link to the prospect that Charter rights will be "judicially enforced."
And yet, in recent years, the courts themselves seem to be pointing us in a new direction. Trends in public law jurisprudence--especially at the Supreme Court of Canada--suggest that in the future, administrative decision-makers will be increasingly required to engage with complex human rights concepts in exercising their discretion. This includes not only the Charter but also international human rights sources. The engagement with human rights that is expected of administrative decisionmakers presents a challenge: it is broad in terms of the concepts that could be implicated, flexible in how the concepts could affect the decision, and rigorous in the required analysis.
I will argue that if this vision is realized, administrative proceedings will become an increasingly important venue for the contestation and interpretation of human rights. This amounts to a vision of a more grassroots and decentralized human rights culture in Canada. Such engagement with human rights at the "administrative grassroots" would supplement--but of course not replace--the independent remedial and interpretive role of the judicial branch. In a more grassroots human rights culture, administrative procedures would provide a unique venue for human rights debate and reasoning, in which a wider range of individuals would have the opportunity to participate in structured, yet accessible, conversations about rights.
Undoubtedly, realizing this vision in practice will be highly challenging. The trends discussed in this paper appear to apply to any administrative decision-maker whose decisions, in particular matters, are subject to judicial review. Consider the broad range of contexts where the law delegates discretionary powers to administrative agencies and public officials.
On the one hand, this decision-making can often occur in a more procedurally formal context, such as when discretionary powers have been delegated to an administrative agency with a certain degree of independence from government. Examples include labour and employment tribunals, the Immigration and Refugee Board, municipal boards, securities commissions, and human rights tribunals. Although these decision-making contexts are certainly less formal than the courts from a legal perspective, many of the decision-makers have some level of legal training, as well as access to organizational resources to support them when novel legal issues arise.
On the other hand, administrative decision-making also occurs in a wide range of less formal situations, where a discretionary decision-making power is exercised by a Minister or lower level officials in a government department or agency. Examples include decisions by officers of the Canada Border Services Agency on whether to defer the enforcement of a removal order; (4) decisions about driver's licenses for motor vehicles; and decisions about the issuance, refusal, and revocation of passports. Administrative officials working in contexts such as these often do not have formal legal training and are expected to quickly make and document their decisions.
This paper arises from a conference in which participants were asked to speak about emerging issues in constitutional rights that could define the next 15 years of the Charter. (5) In my view, this particular emerging issue is both a tremendous challenge and a transformative opportunity for Canadian society. It is a challenge because meaningful and procedurally fair engagement with human rights will be difficult for the wide range of administrative decision-makers and the people who are subject to their decisions. However, it is also an opportunity to build a more accessible and innovative system of rights protection in Canada, because effectively realizing a grassroots human rights culture would open up human rights discourse and decision-making to a wider range of voices.
TRENDS IN PUBLIC LAW: HUMAN RIGHTS AND ADMINISTRATIVE DECISION-MAKING
This section will identify three trends in Canadian public law that increasingly require administrative decision-makers to engage substantively with human rights concepts. Each trend has the potential to make decision-making significantly more intricate and unpredictable.
The trends are based on three major public law decisions of the Supreme Court, which I will introduce here and discuss in more detail below. The first is Baker v Canada (Minister of Citizenship and Immigration). (6) This 1999 decision was a judicial review in a context where a statutory provision afforded relatively open-ended discretion to the Ministerial delegate, who was an immigration officer. For this paper, the core holding was that the exercise of discretion by administrative decision-makers should be informed by "fundamental Canadian...