What is the standard of review to determine whether a public authority has acted compatibly with human rights?

Doré v Barreau du Québec, 2012 SCC 12 (22 March 2012)


The Supreme Court of Canada has delivered a key decision clarifying the standard of review to be applied in considering whether administrative decision-makers have exercised their discretion compatibly with the Canadian Charter. The Court held that, rather than using the test in R v Oakes [1986] 1 SCR 103, which is used to determine whether legislation is Charter compatible, a more flexible reasonableness test should be used, drawing on administrative law concepts and providing greater deference to administrative decision-makers.

The decision may have implications for the test to be applied in challenges to decision of public authorities using section 38 of the Victorian Charter.


Doré, a lawyer in Quebec, appeared before a judge on behalf of a client in criminal proceedings in June 2001. In the course of argument, the judge criticised Doré. In his written reasons, the judge continued his criticism, accusing Doré of using bombastic rhetoric and hyperbole, of being impudent and of doing nothing to help his client discharge his burden (the judge would later be reprimanded by a panel of fellow judges for these actions).

Shortly afterwards, Doré wrote a private letter to the judge, calling him, among other things, loathsome, arrogant, fundamentally unjust, accusing him of failing to master any social skills and of using his court to launch ugly, vulgar and mean personal attacks.

Perhaps unsurprisingly, Doré was taken to the disciplinary council of the local lawyers’ association on the basis that the letter was likely to offend, rude and insulting. His arguments relating to freedom of expression (protected in article 2(b) of the Canadian Charter) were rejected by the council, and he was reprimanded and suspended for 21 days.

Doré appealed to an administrative tribunal, sought judicial review in the Superior Court of Quebec, appealed to the Quebec Court of Appeal and, having failed at every stage, appealed to the Supreme Court of Canada. In the Supreme Court, Doré asserted that the finding of a breach of professional ethics by the council violated his right to freedom of expression.


The Supreme Court dismissed the appeal, and upheld the decision of the council in reprimanding Doré.

However, the Court noted that different tests for determining the question of Charter compatibility had been applied at different stages of the proceeding, and took the opportunity to reconsider the appropriate standard of review of discretionary administrative decisions for compatibility with the Charter.

In Canada, rights and freedoms may be subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” under section 1 of the Charter. The test for applying section 1 in the context of considering whether legislation is Charter compatible (and therefore constitutional) was set out in the celebrated Oakes case in 1986. That test formed the basis of the reasonable limitations provision in section 7(2) of the Victorian Charter.

Three years later, in the 1989 Slaight decision, the Canadian Supreme Court held that the test in Oakes also applied to review of discretionary administrative decisions. At the time, this was done in part because of a view by the Court that the existing administrative law standard of review was not suited to Charter issues, because it did not permit enquiry into the substance of discretionary decisions. The Court noted that the relationship between the traditional administrative law standard of review and Charter review would be worked out in future cases.

The judgment in Doré notes these and a number of other key Canadian decisions on the interaction between traditional administrative law and Charter review of discretionary decisions. Notably, the court refers to the 2008 Supreme Court decision of Dunsmuir, which it describes as introducing a “revised administrative law template”. This decision set out a new reasonableness standard of review and stated that judicial review should be “guided by a policy of deference, justified on the basis of legislative intent, respect for the specialized expertise of administrative decision-makers, and recognition that courts do not have a monopoly on adjudication in the administrative state”.

In light of these developments, the Court determined that the appropriate standard of review of administrative decisions for Charter compatibility is reasonableness, and not the “correctness” approach in the Oakes test. Accordingly, a different standard would apply to review of the constitutionality of laws and in reviewing administrative decisions that are said to violate the rights of a particular individual.

Although a proportionality analysis is at the heart of both standards of review, there are differences. Notably, in review of administrative decisions, a court should adopt a more deferential standard that takes account of expertise and specialisation of the primary decision-maker. This ensures that the superior courts are not assuming in effect a de novo appeal of the decision, which could lead to judicial-micromanaging of administrative decisions.

Relevance to the Victorian Charter

The decision provides food for thought in considering the approach that Victorian courts should take in reviewing decisions of public authorities for compatibility with their obligations under section 38 of the Charter.

In particular, the role of the reasonable limitations provision section 7(2) in the process of review of lawfulness under section 38 is still in some doubt. In P J B v Melbourne Health & Anor (Patrick’s case) [2011] VSC 327, Justice Bell held that section 7(2) has a role to play under section 38.

In Momcilovic the Court of Appeal held that section 7(2) has no role in the interpretation provision in section 32, although it does have a role in determining whether to make a declaration of inconstant interpretation under section 36. It did not address the role of section 7(2) in relation to section 38.

The High Court in Momcilovic was split on the role of s 7(2) in s 32 and s 36, such that there is probably no binding authority on these questions from the decision. As such, the most likely result is that the Court of Appeal judgment in Momcilovic remains good law for now on these issues.

There was some support for the proposition that s 7(2) has a role in compatibility with s 38 in the judgments of Justice Gummow (with whom Justice Hayne relevantly agreed) and Justice Bell of the High Courtin Momcilovic, while Chief Justice French took a different approach. This issue still probably remains to be determined in a suitable case, unless clarified by legislative amendment.

The Human Rights Law Centre has previously argued that s 7(2) should not play a role in determining whether administrative decisions are compatible with the Charter. Rather, the Centre has argued that compatibility should be determined by reference to s 38(2) which states that the obligation on public authorities does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

One could argue that the decision in Doré supports the argument that s 7(2) should not play a role in determining whether a decision is compatible s 38. This is because s 7(2) is based on the test in Oakes, which the Canadian Supreme Court – the very court that decided Oakes – has determined is not appropriate for review of administrative decisions. Rather, the kind of reasonableness assessment in s 38(2) is closer to the reasonableness test set out in Doré.

However, there are some differences. First, it is not clear what role s 38(2) plays in discretionary decisions such as the one in Doré. The provision is modeled on a provision from the United Kingdom Human Rights Act that is aimed more at non-discretionary decisions, although the wording was changed in the Victorian Charter. Second, much of the reasoning in Doré is based around the idea of aligning Charter review with non-Charter standards of administrative review. However, as the reasonableness standard is not used in non-Charter review of administrative decisions in Australia, this reasoning would not apply in Victoria.

Finally, although it may seem that review of administrative decisions under s 38 of the Charter raises several difficult issues to resolve, it is worth noting that these issues have been considered and resolved over a period of decades in Canada. Charter jurisprudence in Victoria is still at an early stage, particularly in relation to section 38, and it may not be necessary to resolve these complex issues immediately – the point is rather to give effect to the legal protection of basic human rights in the cases that arise.

The decision is available online at: http://canlii.ca/en/ca/scc/doc/2012/2012scc12/2012scc12.html

Hugh Mannreitz is a Melbourne-based lawyer.