Tipping the Scales in the Reasonableness-Proportionality Debate in Canadian Administrative Law

• Author: Iryna Ponomarenko
• Position: Is a PhD student at the Peter A. Allard School of Law at the University of British Columbia and a Sessional Lecturer at the Simon Fraser University School of Criminology
• Pages: 125-144

APPEALVOLUME 21

n

125

ARTICLE

TIPPING THE SCALES IN THE

REASONABLENESSPROPORTIONALITY

DEBATE IN CANADIAN ADMINISTRATIVE

LAW

Iryna Ponomarenko*

CITED: (2016) 21 Appeal 125

INTRODUCTION.................................................126

I. CHARTING THE DIVERSE LANDSCAPE IN THE REVIEW OF

DISCRETIONARY DECISIONS UNDER THE CHARTER .............128

II. REASONABLENESS VS PROPORTIONALITY: AN UNNECESSARY

CONFUSION ..................................................131

A. Dierences in the Intensity of Review ..............................132

B. Dierences in the Structure of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

C. e Weight/Scales Dilemma .....................................140

III. THE CULTURE OF JUSTIFICATION .............................142

IV. REASONABLENESS OR PROPORTIONALITY? .....................143

CONCLUSION ...................................................144

* Iryna Ponomarenko is a PhD st udent at the Peter A. Allard School of L aw at the University of

British Columbia and a Session al Lecturer at the Simon Fraser Universi ty School of Criminology.

Iryna wishes to thank her d octoral supervisor, Professo r Joel Bakan, for his continued

encouragement, guidance, and support.

126

n

APPEALVOLUME 21

INTRODUCTION

In recent years, there has been considerable debate on the appropriate intensity of, and

the proper analytical framework for, judicial review of discretionary administrative

decisions1 that invoke the Canadian C harter of Rights and Freedoms (“Charter”).2,3Whi le

the proportionality a nalysis set out in R v Oakes (“Oakes”)4is a well-established st andard

in constitutional adjudication, its embracement in administrative law has not been

without practical and theoretical diculties, nor has it been free of criticism. While

many perceived the reviewing courts as having to decide between the administrative

law standard of rea sonableness and the constitutional law frame work of proportionality,

in Doré v Barreau du Québec (“Doré”),5the Supreme Court of Canada (the “SCC”)

has unexpectedly propounded a middle ground and opted for what it called “the

reasonableness ana lysis […] that centres on proportionality”.6

e question is whether this merg ing of two normatively distinct st andards of review into

one is a tenable approach to the review of administrative decisions under the Charter.

Indeed, can adm inistrative law accommodate such a doc trine? Moreover, are there viable

distinctions between reasonableness, proportionality, and “reasonable proportionality”?

If so, where does the dierence lie? If not, is this proliferation of standards of review

anything but just rhetoric al ourish?

ese are not idle questions. Even a cursory look at case law reveals scant agreement

by judges as to which standard of review—reasonableness or proportionality—should

be applied to constitutional issues that arise in the administrative context and what

the dierences between the two are.7 According to Audrey Macklin, “[t]he rules of the

road keep changing, pointing us in one direction (follow the Oakes test! says Multani)

then another (go toward administrative law! says Doré)”.8 Post-Doré, the SCC remains

divided on the appropriate methodology, particularly regarding the scope of Charter

1 Pursuant to the approach adopted in Slaight Communications Inc v Davidson,[1989] 1 SCR

1038 [Slaight], and further armed in D oré v Barreau du Québec, 2012 SCC 12 [Doré], there is a

distinction to be made b etween a discretionary administrative decision that engages Charter

rights (that is, imprecisely authorized decisions) and administrative decisions that are expressly

authorized by a statute to inf ringe the Charter (see e.g. Slaight). In the latter scenario, the

empowering statute its elf must satisfy the require ments of section 1 of the Charter; whereas

in the case of broad or impre cise grant of discretion, it is the discreti onary decision that ought

to be tested. This articl e will focus on the inconsistent judicial tr eatment of imprecise grants of

discretion, as oppose d to express grants of authority to in fringe Charter rights.

2 See e.g. Hoi L Kong, “Doré, Proportion ality and the Virtues of Judi cial Craft” (2013) 63 SCLR 501;

Audrey Macklin, “Charter R ight or Charter Lite? Administrative Discre tion and the Charter” (2014)

67 SCLR 561 [Macklin]. Joseph Arvay, Sean Hern & Alison Lat imer, “Proportionality and the Pu blic

Law” (2015) 28 Can J Admin L & Prac 23.

3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Ac t, 1982, being Schedule B to

the Canada Act 1982 (UK), 1982, c 11 [Charter].

4 R v Oakes,[1986] 1 SCR 103 [Oakes].

5 Doré, supra note 1.

6 Ibid, at para 7.

7 See e.g. the decisions in Stoman v Vancouver General Hospital, [1990] 3 SCR 483; Dagenais v

Canadian Broadcasting Corp, [1994] 3 SCR 835; Little Sisters Book and Art Emporiu m v Canada

(Minister of Justice), 2000 SCC 69; Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6;

and Canada (AG) v PHS Community Services Socie ty,2011 SCC 44, where the SCC applied a section

1 analysis.

Cf. Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817; Trinity Western

University v British Columbia College of Teachers, 2001 SCC 31; Canada (Prime Minister) v Khadr, 2010

SCC 3, where the SCC performed a j udicial review on a reasonableness s tandard.

8 Macklin, supra note 2 at 561 (citations omitted).