SUPREME
COURT OF CANADA
Citation: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R.
395
|
Date:
20120322
Docket:
33594
|
Between:
Gilles
Doré
Appellant
and
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
Coram: McLachlin C.J. and Binnie, LeBel, Fish, Abella, Rothstein and
Cromwell JJ.
Reasons for
Judgment:
(paras. 1 to 72)
|
Abella J. (McLachlin C.J. and Binnie, LeBel, Fish,
Rothstein and Cromwell JJ. concurring)
|
Doré v. Barreau du Québec, 2012 SCC 12,
[2012] 1 S.C.R. 395
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
Indexed as: Doré v. Barreau du Québec
2012 SCC 12
File No.: 33594.
2011: January 26; 2012: March 22.
Present: McLachlin C.J. and Binnie, LeBel, Fish, Abella,
Rothstein and Cromwell JJ.
on appeal from the court of appeal for quebec
Administrative law — Judicial review — Standard
of review — Disciplinary council — Lawyer challenging constitutionality of
council’s decision — Proper approach to judicial review of discretionary
administrative decisions engaging Charter protections — Whether framework developed in R. v. Oakes appropriate to
determine if discretionary administrative decisions comply with Canadian
Charter of Rights and Freedoms .
Law of professions — Discipline — Barristers and
solicitors — Lawyer writing private letter to judge and criticizing him —
Disciplinary council finding lawyer in breach of duty to behave with
objectivity, moderation and dignity and reprimanding him — Whether council
properly balanced relevant Charter values with statutory objectives — Whether
decision reasonable — Code of ethics of advocates, R.R.Q. 1981, c. B-1, r. 1,
art. 2.03.
D
appeared before a judge of the Superior Court of Quebec on behalf of a client.
In the course of D’s argument, the judge criticized D. In his written reasons
rejecting D’s application, the judge levied further criticism, accusing D of
using bombastic rhetoric and hyperbole, of engaging in idle quibbling, of being
impudent and of doing nothing to help his client discharge his burden. D then
wrote a private letter to the judge calling him loathsome, arrogant and
fundamentally unjust, and accusing him of hiding behind his status like a
coward, of having a chronic inability to master any social skills, of being
pedantic, aggressive and petty, and of having a propensity to use his court to
launch ugly, vulgar and mean personal attacks.
The
Assistant Syndic of the Barreau du Québec filed a complaint against D based on
that letter alleging that D had violated art. 2.03 of the Code of ethics of
advocates, which states that the conduct of advocates “must bear the stamp
of objectivity, moderation and dignity”. The Disciplinary Council of the
Barreau du Québec found that the letter was likely to offend, rude and
insulting, that the statements had little expressive value, and that the
judge’s conduct, which resulted in a reprimand from the Canadian Judicial
Council, could not be relied on as justification for it. The Council rejected
D’s argument that art. 2.03 violated s. 2 (b) of the Canadian Charter
of Rights and Freedoms , finding that the limitation on freedom of
expression was reasonable. Based on the seriousness of D’s conduct, the
Council reprimanded D and suspended his ability to practice law for 21 days.
On appeal to the Tribunal des professions, D abandoned his constitutional
challenge to the specific provision, arguing instead that the sanction itself
violated his freedom of expression. The Tribunal found that D had exceeded the
objectivity, moderation and dignity expected of him and that the decision to
sanction D was a minimal restriction on his freedom of expression. On judicial
review, the Superior Court of Quebec upheld the decision of the Tribunal.
Before
the Quebec Court of Appeal, D no longer appealed the actual sanction of 21
days, challenging only the decision to reprimand him as a violation of the Charter .
The Court of Appeal applied a full Oakes analysis under s. 1 of the Charter
and upheld the reprimand. It found that D’s letter had limited importance
compared to the values underlying freedom of expression, that the Council’s
decision had a rational connection to the important objective of protecting the
public and that the effects of the decision were proportionate to its
objectives.
Held:
The appeal from the result should be dismissed.
To
determine whether administrative decision-makers have exercised their statutory
discretion in accordance with Charter protections, the review should be
in accordance with an administrative law approach, not a s. 1 Oakes analysis.
The standard of review is reasonableness.
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 . But in assessing whether an adjudicated decision violates the Charter ,
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.
There
is nothing in the administrative law approach which is inherently inconsistent
with the strong protection of the Charter ’s guarantees and values. An
administrative law approach recognizes that administrative decision-makers are
both bound by fundamental values and empowered to adjudicate them, and that
administrative discretion is exercised in light of constitutional guarantees
and the values they reflect. An administrative decision-maker exercising a
discretionary power under his or her home statute, has, by virtue of expertise
and specialization, particular familiarity with the competing considerations at
play in weighing Charter values and will generally be in the best
position to consider the impact of the relevant Charter guarantee on the
specific facts of the case. Under a robust conception of administrative law,
discretion is exercised in light of constitutional guarantees and the values
they reflect.
When
applying Charter values in the exercise of statutory discretion, an
administrative decision-maker must balance Charter values with the statutory
objectives by asking how the Charter value at issue will best be
protected in light of those 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.
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 rights and values 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. In the Charter context, the reasonableness
analysis is one that centres on proportionality, that is, on ensuring that the
decision interferes with the relevant Charter guarantee no more than is
necessary given the statutory objectives. If the decision is
disproportionately impairing of the guarantee, it is unreasonable. If, on the
other hand, it reflects a proper balance of the mandate with Charter
protection, it is a reasonable one. But both decision-makers and reviewing
courts must remain conscious of the fundamental importance of Charter
values in the analysis.
Here,
the decision to suspend D for 21 days was not before the Court. The only issue
was whether the Council’s decision to reprimand D reflected a proportionate
balancing of the lawyer’s expressive rights with its statutory mandate to
ensure that lawyers behave with “objectivity, moderation and dignity” in
accordance with art. 2.03 of the Code of ethics. In dealing with the
appropriate boundaries of civility for a lawyer, the severity of the conduct
must 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. 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.
Proper
respect for these expressive rights may involve disciplinary bodies tolerating
a degree of discordant criticism. The fact that a lawyer is criticizing a
judge, a tenured and independent participant in the justice system, may raise,
not lower, the threshold for limiting a lawyer’s expressive rights under the Charter .
This does not, however, argue for an unlimited right on the part of lawyers to
breach the legitimate public expectation that they will behave with civility.
Lawyers potentially face criticisms and pressures on a daily basis. They are
expected by the public, on whose behalf they serve, to endure them with
civility and dignity. This is not always easy where the lawyer feels he or she
has been unfairly provoked, as in this case. But it is precisely when a
lawyer’s equilibrium is unduly tested that he or she is particularly called
upon to behave with transcendent civility. On the other hand, lawyers should
not be expected to behave like verbal eunuchs. They not only have a right to
speak their minds freely, they arguably have a duty to do so. But they are
constrained by their profession to do so with dignified restraint.
A
reprimand for a lawyer does not automatically flow from criticizing a judge or
the judicial system. Such criticism, even when it is expressed vigorously, can
be constructive. However in the context of disciplinary hearings, such
criticism will be measured against the public’s reasonable expectations of a
lawyer’s professionalism. As the Disciplinary Council found, D’s letter was
outside those expectations. His displeasure with the judge was justifiable, but
the extent of the response was not.
In
light of the excessive degree of vituperation in the letter’s context and tone,
the Council’s decision that D’s letter warranted a reprimand represented a
proportional balancing of D’s expressive rights with the statutory objective of
ensuring that lawyers behave with “objectivity, moderation and dignity”. The
decision is, as a result, a reasonable one.
Cases Cited
Discussed:
Multani v. Commission
scolaire Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Chamberlain v.
Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710; Pinet
v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528; Ontario
(Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23,
[2010] 1 S.C.R. 815; Slaight Communications Inc. v. Davidson, [1989] 1
S.C.R. 1038; R. v. Oakes,
[1986] 1 S.C.R. 103; Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Canadian Union of Public
Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; R. v. Conway,
2010 SCC 22, [2010] 1 S.C.R. 765; Stoffman
v. Vancouver General Hospital,
[1990] 3 S.C.R. 483; Dagenais v. Canadian Broadcasting Corp., [1994] 3
S.C.R. 835; Ross v. New Brunswick School District No. 15, [1996] 1
S.C.R. 825; Eldridge v. British Columbia (Attorney General),
[1997] 3 S.C.R. 624; Little Sisters Book and Art Emporium v. Canada
(Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; United States v.
Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; R. v.
Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Trinity Western University v.
British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772; Ahani
v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1
S.C.R. 72; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1
S.C.R. 761; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1
S.C.R. 44; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281;
referred to: Catalyst
Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; R.
v. Lanthier, 2001 CanLII 9351; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Suresh
v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1
S.C.R. 3; Greater Vancouver Transportation Authority v. Canadian Federation
of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295;
R. v. Daviault, [1994] 3 S.C.R. 63; R. v. Swain, [1991] 1 S.C.R.
933; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Grant
v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; R.W.D.S.U., Local
558 v. Pepsi‑Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1
S.C.R. 156; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1
S.C.R. 247; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3
S.C.R. 570; Mooring v. Canada (National Parole Board), [1996] 1 S.C.R.
75; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3
S.C.R. 199; R. v. Felderhof (2003), 68 O.R. (3d) 481; R. v. Kopyto
(1987), 62 O.R. (2d) 449; Attorney‑General v. Times Newspapers Ltd.,
[1974] A.C. 273; Histed v. Law Society of Manitoba, 2007 MBCA 150, 225
Man. R. (2d) 74.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 1 , 2 (b).
Code of ethics of advocates, R.R.Q. 1981, c. B‑1, r. 1,
arts. 2.00.01, 2.03 [rep. (2004) 136 G.O. II, 1272].
Authors Cited
Bernatchez, Stéphane. “Les rapports entre le droit administratif et
les droits et libertés: la révision judiciaire ou le contrôle
constitutionnel?” (2010), 55 McGill L.J. 641.
Canadian Bar Association. Code of Professional Conduct.
Ottawa: The Association, 2009 (online: http://www.cba.org/CBA/activities/pdf/codeofconduct.pdf).
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. Portland, Oregon: Hart, 2004, 61.
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.
Dyzenhaus, David, and Evan Fox‑Decent. “Rethinking the
Process/Substance Distinction: Baker v. Canada” (2001), 51 U.T.L.J.
193.
Evans, J. M. “The Principles of Fundamental Justice: The
Constitution and the Common Law” (1991), 29 Osgoode Hall L.J. 51.
Gratton, Susan L., and Lorne Sossin. “In Search of Coherence:
The Charter and Administrative Law under the McLachlin Court”, in
David A. Wright and Adam M. Dodek, eds., Public Law at the
McLachlin Court: The First Decade. Toronto: Irwin Law, 2011, 145.
Hogg, Peter W. Constitutional Law of Canada, 5th ed.
Supp., vol. 2. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2011,
release 1).
Law Society of Upper Canada. Rules of Professional Conduct,
updated April 28, 2011 (online: http://www.lsuc.on.ca/with.aspx?id=671).
Liston, Mary. “Governments in Miniature: The Rule of Law in the
Administrative State”, in Colleen M. Flood and Lorne Sossin, eds., Administrative
Law in Context. Toronto: Emond Montgomery, 2008, 77.
MacKenzie, Gavin. Lawyers and Ethics: Professional
Responsibility and Discipline, 5th ed. Toronto: Carswell, 2009.
Mullan, David. “Administrative Tribunals and Judicial Review of Charter
Issues after Multani” (2006), 21 N.J.C.L. 127.
APPEAL
from a judgment of the Quebec Court of Appeal (Rochon, Dufresne and Léger
JJ.A.), 2010 QCCA 24, [2010] R.J.Q. 77, 326 D.L.R. (4th) 749, [2010] Q.J. No. 88
(QL), 2010 CarswellQue 13368, affirming a decision of Déziel J., 2008 QCCS 2450
(CanLII), [2008] J.Q. no 5222 (QL), 2008 CarswellQue 5285, dismissing
an application for judicial review of a decision of the Tribunal des professions,
2007 QCTP 152 (CanLII), [2007] D.T.P.Q. no 152 (QL). Appeal dismissed.
Sophie Dormeau and Sophie Préfontaine, for the appellant.
Claude G. Leduc and Luce Bastien, for the respondent Pierre Bernard, in his
capacity as Assistant Syndic of the Barreau du Québec.
Dominique A. 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.
The judgment of the Court was
delivered by
[1]
Abella J. — The focus of this appeal is on the decision of a disciplinary
body to reprimand a lawyer for the content of a letter he wrote to a judge
after a court proceeding.
[2]
The lawyer does not challenge the constitutionality of
the provision in the Code of ethics under which he was reprimanded.
Nor, before us, does he challenge the length of the suspension he received.
What he does challenge, is the constitutionality of the decision itself,
claiming that it violates his freedom of expression under the Canadian Charter
of Rights and Freedoms .
[3]
This raises squarely the issue of how to protect Charter
guarantees and the values they reflect in the context of adjudicated
administrative decisions. Normally, if a discretionary administrative decision
is made by an adjudicator within his or her mandate, that decision is
judicially reviewed for its reasonableness. The question is whether the
presence of a Charter issue calls for the replacement of this administrative
law framework with the Oakes test, the test traditionally used to
determine whether the state has justified a law’s violation of the Charter
as a “reasonable limit” under s. 1 .
[4]
It seems to me to be possible to reconcile the two
regimes in a way that protects the integrity of each. The way to do that is to
recognize that an adjudicated administrative decision is not like a law which
can, theoretically, be objectively justified by the state, making the
traditional s. 1 analysis an awkward fit. On whom does the onus lie, for
example, to formulate and assert the pressing and substantial objective of an
adjudicated decision, let alone justify it as rationally connected to,
minimally impairing of, and proportional to that objective? On the other hand,
the protection of Charter guarantees is a fundamental and pervasive
obligation, no matter which adjudicative forum is applying it. How then do we
ensure this rigorous Charter protection while at the same time
recognizing that the assessment must necessarily be adjusted to fit the
contours of what is being assessed and by whom?
[5]
We do it by recognizing 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 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.
[6]
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.
[7]
As this Court has noted, most recently in Catalyst
Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5,
the nature of the reasonableness analysis is always contingent on its context.
In the Charter context, the reasonableness analysis is one that centres
on proportionality, that is, on ensuring that the decision interferes with the
relevant Charter guarantee no more than is necessary given the statutory
objectives. If the decision is disproportionately impairing of the guarantee,
it is unreasonable. If, on the other hand, it reflects a proper balance of the
mandate with Charter protection, it is a reasonable one.
[8]
In this case, the discipline committee’s decision to
reprimand the lawyer reflected a proportionate balancing of its public mandate
to ensure that lawyers behave with “objectivity, moderation and dignity” with
the lawyer’s expressive rights. It is, as a result, a reasonable one.
Background
[9]
Gilles Doré was counsel for Daniel Lanthier in criminal
proceedings. On June 18 and 19, 2001, Mr. Doré appeared before Boilard J. in
the Superior Court of Quebec seeking a stay of proceedings or, in the
alternative, the release of his client on bail. In the course of Mr. Doré’s
argument, Justice Boilard said about him that [translation] “an insolent lawyer is rarely of use to his client”. In his
written reasons rejecting Mr. Doré’s application on June 21, 2001, Boilard J.
levied further criticism (R. v. Lanthier, 2001 CanLII 9351). He accused
Mr. Doré of [translation] “bombastic rhetoric and hyperbole” and said that the court must
“put aside” Mr. Doré’s “impudence”. Justice Boilard characterized Mr. Doré’s
request for a stay as “totally ridiculous” and one of his arguments as “idle
quibbling”. Finally, he said that “fixated on or obsessed with his narrow
vision of reality, which is not consistent with the facts, Mr. Doré has done
nothing to help his client discharge his burden”.
[10]
On June 21, 2001, Mr. Doré wrote a private letter to
Justice Boilard, stating:
[translation]
WITHOUT PREJUDICE OR ADMISSION
Sir,
I have just left the Court. Just a few
minutes ago, as you hid behind your status like a coward, you made comments
about me that were both unjust and unjustified, scattering them here and there
in a decision the good faith of which will most likely be argued before our
Court of Appeal.
Because you ducked out quickly and
refused to hear me, I have chosen to write a letter as an entirely personal
response to the equally personal remarks you permitted yourself to make about
me. This letter, therefore, is from man to man and is outside the ambit of my
profession and your functions.
If no one has ever told you the
following, then it is high time someone did. Your chronic inability to master
any social skills (to use an expression in English, that language you love so
much), which has caused you to become pedantic, aggressive and petty in your
daily life, makes no difference to me; after all, it seems to suit you well.
Your deliberate expression of these
character traits while exercising your judicial functions, however, and your
having made them your trademark concern me a great deal, and I feel that it is
appropriate to tell you.
Your legal knowledge, which appears to
have earned the approval of a certain number of your colleagues, is far from
sufficient to make you the person you could or should be professionally. Your
determination to obliterate any humanity from your judicial position, your
essentially non-existent listening skills, and your propensity to use your
court — where you lack the courage to hear opinions contrary to your own — to
launch ugly, vulgar, and mean personal attacks not only confirms that you are
as loathsome as suspected, but also casts shame on you as a judge, that most
extraordinarily important function that was entrusted to you.
I would have very much liked to say this
to your face, but I highly doubt that, given your arrogance, you are able to
face your detractors without hiding behind your judicial position.
Worst of all, you possess the most
appalling of all defects for a man in your position: You are fundamentally
unjust. I doubt that that will ever change.
Sincerely,
Gilles Doré
P.S. As this letter is purely personal, I see no
need to distribute it.
(C.A.
judgment, 2010 QCCA 24, 326 D.L.R. (4th) 749, at para. 5)
[11]
The next day, June 22, 2001, Mr. Doré wrote to Chief
Justice Lyse Lemieux, with a copy to Justice Boilard. He made it clear that he
was not filing a complaint with her against Justice Boilard. Instead, Mr. Doré
respectfully requested that he not be required to appear before Justice Boilard
in the future since he was concerned that he could not properly represent his
clients before him.
[12]
On July 10, 2001, Mr. Doré complained to the Canadian
Judicial Council about Justice Boilard’s conduct. On July 13, 2001, Chief
Justice Lemieux sent a copy of the letter Mr. Doré had sent to Justice Boilard
to the Syndic du Barreau, the body that disciplines lawyers in Quebec.
[13]
In March 2002, the Assistant Syndic filed a complaint
against Mr. Doré based on his letter to Justice Boilard. The complaint alleged
that Mr. Doré had violated both art. 2.03 of the Code of ethics of advocates,
R.R.Q. 1981, c. B-1, r. 1, and Mr. Doré’s oath of office. Article 2.03 stated:
“The conduct of an advocate must bear the stamp of objectivity, moderation and
dignity.”
[14]
In the interval between the filing of the Assistant
Syndic’s complaint against Mr. Doré and the actual proceedings against him, a
committee of judges appointed by the Judicial Council to look into Mr. Doré’s complaint communicated its conclusions
to Mr. Doré and Justice Boilard in letters sent on July 15, 2002. The
committee found that Justice Boilard had made [translation] “unjustified derogatory remarks to Mr.
Doré” stating, in part:
[translation]
. . . to use the words “bombastic rhetoric and
hyperbole” and “impudence” in referring to counsel arguing a case before you,
quite clearly in good faith, is unnecessarily insulting. To reply to counsel
who submits that you have not allowed him to argue his case “that an insolent lawyer
is rarely of use to his client” not only is unjustified in the circumstances,
but could tarnish counsel’s professional reputation in the eyes of his client,
his peers and the public. To say to counsel arguing a case before you that “I
have the impression this is going to be tiresome” is to gratuitously degrade
him. To describe a procedure before the court as “totally ridiculous” is
unnecessarily humiliating. It is the panel’s opinion that such comments would
seem to show contempt for counsel not only as an individual but also as a
professional.
The evidence reveals a flagrant lack of
respect for an officer of the court, namely Mr. Doré, who was nevertheless at
all times respectful to the court. The evidence also shows signs of impatience
on your part that are surprising in light of every judge’s duty to listen
calmly to the parties and to counsel. It is the panel’s opinion that in so
abusing your power as a judge, you not only tarnished your image as a dispenser
of justice, but also undermined the judiciary, the image of which has
unfortunately been diminished. The panel reminds you that your independence
and your authority as a judge do not exempt you from respecting the dignity of
every individual who argues a case before you. Dispensing justice while
gratuitously insulting counsel is befitting neither for the judge nor for the
judiciary.
Having also read the judgments of the
Quebec Court of Appeal in R. v. Proulx, R. v. Bisson and R. v.
Callochia, the panel observed that you tend to use your platform to
unjustly denigrate counsel appearing before you. The transcript of the hearing
of April 9, 2002 in Sa Majesté la Reine v. Sébastien Beauchamp, which
contains evidence of personal attacks on another lawyer, also confirmed that
the case raised in Mr. Doré’s complaint is neither unique nor isolated, but
shows that extreme conduct and comments seem to form part of a more generalized
attitude. In the panel’s view, the fact that such an attitude could persist
despite warnings from the Court of Appeal is troubling.
The panel finds that the impatience you
showed and the immoderate comments you made to an officer of the court, Mr.
Doré, are unacceptable and merit an expression of the panel’s disapproval under
subsection 55(2) of the Canadian Judicial Council By-Laws.
The
panel notes that you have deferred to its decision and assumes that the fact
that Mr. Doré has made a complaint will lead you to reflect on this and will
remind you of your duty as a judge to show respect and courtesy to all counsel
who appear before you.
[15]
On July 22, 2002, after receiving this reprimand,
Justice Boilard recused himself from a complex criminal trial involving the
Hell’s Angels, a trial related to the trial of Daniel Lanthier in which Mr.
Doré had acted. As a result of this recusal, the Attorney General of Quebec
requested the Canadian Judicial Council to conduct an inquiry. The Judicial
Council concluded that Justice Boilard’s recusal had not constituted
misconduct.
[16]
As for Mr. Doré, the proceedings before the Disciplinary Council of the Barreau du
Québec took place between April
2003 and January 2006. In its January 18, 2006 decision, the Disciplinary
Council found that Mr. Doré’s letter was [translation] “likely to offend and is rude and insulting” (2006 CanLII 53416,
at para. 58). It concluded that his statements had little expressive value, as
they were “merely opinions, perceptions and insults” (para. 62). The
Disciplinary Council rejected Mr. Doré’s submission that his letter was
private, since it was written by him as a lawyer. It also concluded
that Justice Boilard’s conduct could not be relied on as justification for the
letter.
[17]
The Disciplinary Council rejected Mr. Doré’s argument
that art. 2.03 violated s. 2 (b) of the Charter . While
acknowledging that the provision infringed on freedom of expression, the
Disciplinary Council found that
[translation]
[t]his is a limitation on freedom of expression that is entirely reasonable,
even necessary, in the Canadian legal system, where lawyers and judges must
work together in the interest of justice. [para. 88]
Moreover, it concluded
that Mr. Doré had willingly joined a profession that was subject to rules of
discipline that he knew would limit his freedom of expression. While the rules
may [translation] “be seen as restrictions imposed on the members of the Barreau in
comparison to the freedom that may be enjoyed by other Canadian citizens”, they
are made in exchange for “the privileges conferred on lawyers as members of an
‘exclusive profession’” (paras. 109-10). On July 24, 2006, based on what it
found to be the seriousness of Mr. Doré’s conduct and on his failure to show
remorse, the same panel suspended Mr. Doré’s ability to practise law for 21
days (2006 CanLII 53436).
[18]
Mr. Doré appealed the Disciplinary Council’s decisions
to the Tribunal des professions on several grounds (2007 QCTP 152 (CanLII)).
This time, he did not challenge the constitutionality of art. 2.03. Instead,
he argued that the manner in which the relevant legislation was applied by the
Disciplinary Council was unconstitutional because his comments were protected
by s. 2 (b) of the Charter .
[19]
The Tribunal reviewed the constitutionality of the
Disciplinary Council’s decision on a standard of correctness, but said that a
full Oakes analysis under s. 1 of the Charter was inappropriate
where a decision only applied to one person. Instead, it held that “[t]he
issue becomes one of proportionality or, more specifically, minimal limitation
of the guaranteed right” (para. 69, citing Multani v. Commission scolaire
Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256, at para. 155). In
the circumstances, the Disciplinary Council’s decision to sanction Mr. Doré was
found to be a [translation] “minimal restriction on
freedom of expression” (para. 76). It rejected Mr. Doré’s argument that
Justice Boilard’s disparaging remarks justified his letter. It also rejected
his argument that the letter was private, since Mr. Doré remained “an officer
of the court and a lawyer” (para. 77) and had exceeded the objectivity,
moderation and dignity expected of him. Though it noted that the sanction
imposed by the Disciplinary Council “seems harsh” (para. 135), the Tribunal
held that it was not unreasonable, given the gravity of Mr. Doré’s conduct and
his lack of remorse.
[20]
On judicial review, the Superior Court of Quebec upheld
the decision of the Tribunal, including its view that the letter did not
constitute a private act, and found the Tribunal’s reasoning to be [translation] “unassailable” (2008 QCCS 2450 (CanLII), at paras. 105, 109, 139
and 147). It concluded that by finding the decision to be a minimal
restriction on Mr. Doré’s freedom of expression, the Tribunal had “implicitly”
held that the restriction was “justified in a free and democratic society”
(para. 104).
[21]
The Quebec Court of Appeal held that given the status and role of the parties, Mr. Doré could not
reasonably have expected his letter to remain confidential or private. It
acknowledged that the Disciplinary Council’s decision was a breach of s. 2 (b),
but, applying a full s. 1 analysis, it found that Mr. Doré’s letter had [translation] “limited importance . . . compared to the values underlying
freedom of expression, which are the pursuit of truth, participation in the
community, individual self-fulfillment, and human flourishing” (para. 36). The
court held that protecting the public was an important objective, and that the
Disciplinary Council’s decision had a rational connection with that objective,
especially given the importance of a judge’s position in the judicial system.
On minimal impairment, assessing both the decision and the sanction, the Court
of Appeal held that while the sanction was significant, it was targeted at the
manner in which Mr. Doré criticized Justice Boilard, and did not prohibit the
expression itself:
[translation] The impugned decision
appears to be measured and, in the present case, is a correct application of
section 2.03 of the Code of ethics. The sanction is significant (suspension
of the right to practice for twenty-one days). It also involves the stigma
attached to disciplinary guilt. It is not, however, unreasonable. In my view,
it is a measured sanction of a lawyer who has been found guilty of a serious
ethical offence. [para. 47]
It concluded by finding
that the effects of the decision were proportionate to its objectives.
Analysis
[22]
Mr. Doré’s argument rests on his assertion that the
finding of a breach of the Code of ethics violates the expressive rights
protected by s. 2 (b) of the Charter . Because the 21-day
suspension had already been served when he was before the Court of Appeal, he
did not appeal the penalty. The reasonableness of its length, therefore, is
not before us.
[23]
It is clear from the decisions of the Tribunal and the
reviewing courts in this case that there is some confusion about the
appropriate framework to be applied in reviewing administrative decisions for
compliance with Charter values. Some courts have used the same s. 1 Oakes
analysis used for determining whether a law complies with the Charter ;
others have used a classic judicial review approach.
[24]
It goes without saying that administrative
decision-makers must act consistently with the values underlying the grant of
discretion, including Charter values (see Chamberlain v. Surrey
School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710, at para. 71;
Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528,
at paras. 19-23; and Ontario (Public Safety and Security) v. Criminal Lawyers’
Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at paras. 62-75). The
question then is what framework should be used to scrutinize how those values
were applied?
[25]
In Slaight Communications Inc. v. Davidson,
[1989] 1 S.C.R. 1038, Lamer J., in his concurring reasons, said that the
Charter applied to a labour adjudicator’s decision and used the s. 1 framework developed in R. v. Oakes,
[1986] 1 S.C.R. 103, to determine if the decision complied with the Charter .
Writing for the majority, Dickson C.J. agreed with
Lamer J. that the Charter applied to administrative
decision-making. But while he applied the Oakes framework, he notably
and presciently observed that “[t]he precise relationship between the
traditional standard of administrative law review of patent unreasonableness
and the new constitutional standard of review will be worked out in future
cases” (p. 1049 (emphasis added)).
[26]
Yet the approach taken in Slaight can only be
properly understood in its context. Importantly, when Lamer J. held that discretionary
administrative decisions implicating Charter values should be reviewed
under the Oakes analysis, he did so in the context of the perceived
inability of administrative law to deal with Charter infringements in
the exercise of discretion. This concern permeates the reasons in Slaight.
As Prof. Geneviève Cartier has noted:
. . . while Lamer J thought the
administrative law standard was ill-suited to Charter challenges because
of its inability to inquire into the substance of discretionary decisions,
Dickson CJ thought it was ill-suited because of its inability to properly
unravel the value inquiries involved in any Charter litigation.
(“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), 61, at p. 68)
[27]
The approach taken in Slaight attracted academic
concern from administrative law scholars. Prof. John Evans argued that if
courts were too quick to bypass administrative law in favour of the Charter ,
“a rich source of thought and experience about law and government will be
overlooked or lost altogether” (“The Principles of Fundamental Justice: The
Constitution and the Common Law” (1991), 29 Osgoode Hall L.J. 51, at p.
73). Similarly, Prof. Cartier suggested that the Slaight approach
reduced the role of administrative law to the “formal determination of
jurisdiction on the basis of statutory interpretation”, which prevented the
control of discretion with reference to “values” and presented “an impoverished
picture of administrative law” (pp. 68-69).
[28]
The scope of the review of discretionary administrative
decisions that provided the backdrop for the decision in Slaight was
altered by this Court’s decision in Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, at para. 65. In that case,
L’Heureux-Dubé J. concluded that administrative decision-makers were required
to take into account fundamental Canadian values, including those in the Charter ,
when exercising their discretion (Baker, at paras. 53-56).
[29]
Building on the decision in Canadian Union of Public
Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 (“C.U.P.E.”),
Baker represented a further shift away from Diceyan principles. By
recognizing that administrative decision-makers are both bound by fundamental
values and empowered to adjudicate them, Baker ceded interpretive
authority on those issues to those decision-makers (David Dyzenhaus and Evan
Fox-Decent, “Rethinking the Process/Substance Distinction: Baker v.
Canada” (2001), 51 U.T.L.J. 193, at p. 240). This allows the Charter
to “nurture” administrative law, by emphasizing that Charter values
infuse the inquiry (Cartier, at pp. 75 and 86; see also Mary Liston,
“Governments in Miniature: The Rule of Law in the Administrative State”, in
Colleen M. Flood and Lorne Sossin, eds., Administrative Law in Context
(2008), 77, at p. 100; Susan L. Gratton and Lorne Sossin, “In Search of
Coherence: The Charter and Administrative Law under the McLachlin
Court”, in David A. Wright and Adam M. Dodek, eds., Public Law at the
McLachlin Court: The First Decade (2011), 145, at pp. 157-58).
[30]
When this is weighed together with this Court’s
subsequent decisions, we see a completely revised relationship between the Charter ,
the courts, and administrative law than the one first encountered in Slaight.
In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Court
held 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 (para. 49). And in R.
v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at paras. 78-82, building on
the development of the jurisprudence, the Court found that administrative
tribunals with the power to decide questions of law have the authority to apply
the Charter and grant Charter remedies that are linked to matters
properly before them.
[31]
But, as predicted by Chief Justice Dickson, this Court
has explored different ways to review the constitutionality of administrative
decisions, vacillating between the values-based approach in Baker and
the more formalistic template in Slaight. The s. 1 Oakes approach
suggested by Lamer J., was followed in Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Dagenais v.
Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Ross v. New Brunswick
School District No. 15, [1996] 1 S.C.R. 825; Eldridge
v. British Columbia (Attorney General), [1997] 3
S.C.R. 624; Little Sisters Book and Art Emporium v. Canada (Minister of
Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; United States v. Burns,
2001 SCC 7, [2001] 1 S.C.R. 283; and R. v. Mentuck, 2001 SCC 76, [2001]
3 S.C.R. 442.
[32]
Other cases, and particularly recently, have instead
applied an administrative law/judicial review analysis in assessing whether the
decision-maker took sufficient account of Charter values. This approach
is seen in Baker; Trinity Western University v. British Columbia
College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772; Chamberlain; Ahani
v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1
S.C.R. 72; Pinet; Lake v. Canada (Minister of Justice), 2008 SCC
23, [2008] 1 S.C.R. 761; Canada (Prime Minister) v. Khadr, 2010 SCC 3,
[2010] 1 S.C.R. 44; Criminal Lawyers’ Association; and Németh v.
Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281.
[33]
The last decision of this Court to use the full s. 1 Oakes
approach to determine whether the exercise of statutory discretion complied
with the Charter was Multani. The academic commentary that
followed was consistently critical. In brief, it generally argued that the use
of a strict s. 1 analysis reduced administrative law to having a formal role in
controlling the exercise of discretion (see Gratton and Sossin, at p. 157;
David Mullan, “Administrative Tribunals and Judicial Review of Charter
Issues after Multani” (2006), 21 N.J.C.L. 127; Stéphane
Bernatchez, “Les rapports entre le droit administratif et les droits et
libertés: la révision judiciaire ou le contrôle constitutionnel?” (2010), 55 McGill
L.J. 641).
[34]
Since then, and largely as a result of the revised
administrative law template found in Dunsmuir, this Court appears to
have moved away from Multani, leading to the suggestion that it may have
“decided to start from ground zero in building coherence in public law”
(Gratton and Sossin, at p. 161). Today, the Court has two options for
reviewing discretionary administrative decisions that implicate Charter values.
The first is to adopt the Oakes framework, developed for reviewing laws
for compliance with the Constitution. This undoubtedly protects Charter
rights, but it does so at the risk of undermining a more robust conception of administrative
law. In the words of Prof. Evans, if administrative law is bypassed for the Charter ,
“a rich source of thought and experience about law and government will be
overlooked” (p. 73).
[35]
The alternative is for the Court to embrace a richer
conception of administrative law, under which discretion is exercised “in light
of constitutional guarantees and the values they reflect” (Multani, at
para. 152, per LeBel J.). Under this approach, it is unnecessary to
retreat to a s. 1 Oakes analysis in order to protect Charter
values. Rather, administrative decisions are always required to
consider fundamental values. The Charter simply acts as “a reminder
that some values are clearly fundamental and . . . cannot be violated lightly”
(Cartier, at p. 86). The administrative law approach also recognizes the
legitimacy that this Court has given to administrative decision-making in cases
such as Dunsmuir and Conway. These cases emphasize that
administrative bodies are empowered, and indeed required, to consider Charter
values within their scope of expertise. Integrating Charter values into
the administrative approach, and recognizing the expertise of these
decision-makers, opens “an institutional dialogue about the appropriate use and
control of discretion, rather than the older command-and-control relationship”
(Liston, at p. 100).
[36]
As explained by Chief Justice McLachlin in Alberta v.
Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, the
approach used when reviewing the constitutionality of a law should be
distinguished from the approach used for reviewing an administrative decision
that is said to violate the rights of a particular individual (see also Bernatchez). When Charter values are applied to an individual
administrative decision, they are being applied in relation to a particular set
of facts. Dunsmuir tells us this should attract deference (para. 53;
see also Suresh v. Canada (Minister of Citizenship and Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3, at para. 39). When a particular “law” is being
assessed for Charter compliance, on the other hand, we are dealing with
principles of general application.
[37]
The more flexible administrative approach to balancing Charter
values is also more consistent with the nature of discretionary
decision-making. Some of the aspects of the Oakes test are, in any
event, poorly suited to the review of discretionary decisions, whether of
judges or administrative decision-makers. For instance, the requirement under
s. 1 that a limit be “prescribed by law” has been held by this Court to apply
to norms where “their adoption is authorized by statute, they are binding rules
of general application, and they are sufficiently accessible and precise to
those to whom they apply” (Greater Vancouver Transportation Authority v.
Canadian Federation of Students — British Columbia Component, 2009 SCC 31,
[2009] 2 S.C.R. 295, at para. 53).
[38]
Moreover, when exercising discretion under a provision
or statutory scheme whose constitutionality is not impugned, it is conceptually
difficult to see what the “pressing and substantial” objective of a decision
is, or who would have the burden of defining and defending it.
[39]
This Court has already recognized the difficulty of
applying the Oakes framework beyond the context of reviewing a law or
other rule of general application. This has been the case in applying Charter
values to the common law, “where there is no specific enactment that can be
examined in terms of objective, rational connection, least drastic means and
proportionate effect” (Peter W. Hogg, Constitutional Law of Canada (5th
ed. Supp.), vol. 2, at section 38.15 ). In R. v. Daviault, [1994] 3
S.C.R. 63, for example, in assessing the common law rule relating to
establishing intent under extreme intoxication, the Court held that no Oakes
analysis was required when reviewing a common law rule for compliance with Charter
values:
If
a new common law rule could be enunciated which would not interfere with an
accused person’s right to have control over the conduct of his or her defence,
I can see no conceptual problem with the Court’s simply enunciating such a rule
to take the place of the old rule, without considering whether the old rule
could nonetheless be upheld under s. 1 of the Charter . Given that the
common law rule was fashioned by judges and not by Parliament or a legislature,
judicial deference to elected bodies is not an issue. If it is possible to
reformulate a common law rule so that it will not conflict with the principles
of fundamental justice, such a reformulation should be undertaken. [pp. 93-94,
citing R. v. Swain, [1991] 1 S.C.R. 933, at p. 978.]
[40]
In Hill v. Church of Scientology of Toronto,
[1995] 2 S.C.R. 1130, this Court explicitly rejected
the use of the s. 1 Oakes framework in developing the common law of
defamation for two reasons. First, when interpreting a common law rule, there
is no violation of a Charter right, but a conflict between principles,
so “the balancing must be more flexible than the traditional s. 1 analysis”,
with Charter values providing the guidelines for any modification to the
common law (para. 97). Second, the Court noted that “the division of onus
which normally operates in a Charter challenge” was not appropriate for
private litigation under the common law, as the party seeking to change the
common law should not be allowed to benefit from a reverse onus (para. 98). As
a result, the Court went on to “consider the common law of defamation in light
of the values underlying the Charter ” (para. 99). And in Grant
v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Court relied on Charter
values in introducing the new defence of responsible communication on
matters of public interest to the law of defamation, without engaging in an Oakes
analysis.
[41]
A further example is found in R.W.D.S.U., Local 558
v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R.
156, where the Court dealt with the common law of secondary picketing. After
concluding that freedom of expression was engaged, the Court did not embark on
an Oakes analysis. Instead, it found that the appropriate question was
“which approach [to regulating secondary picketing] best balances the interests
at stake in a way that conforms to the fundamental values reflected in the Charter ?”
(para. 65).
[42]
Though each of these cases engaged Charter values,
the Court did not see the Oakes test as the vehicle for balancing
whether those values were taken into sufficient account. The same is true, it
seems to me, in the administrative law context, where decision-makers are
called upon to exercise their statutory discretion in accordance with Charter
protections.
[43]
What is the impact of this approach on the standard of
review that applies when assessing the compliance of an administrative decision
with Charter values? There is no doubt that when a tribunal is
determining the constitutionality of a law, the standard of review is
correctness (Dunsmuir, at para. 58). It is not at all clear to me,
however, based on this Court’s jurisprudence, that correctness should be used
to determine whether an administrative decision-maker has taken sufficient
account of Charter values in making a discretionary decision.
[44]
This Court elaborated on the applicable standard of
review to legal disciplinary panels in the pre-Dunsmuir decision of Law
Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, where
Iacobucci J. adopted a reasonableness standard in reviewing a sanction imposed
for professional misconduct:
Although
there is a statutory appeal from decisions of the Discipline Committee, the
expertise of the Committee, the purpose of its enabling statute, and the nature
of the question in dispute all suggest a more deferential standard of review
than correctness. These factors suggest that the legislator intended that
the Discipline Committee of the self-regulating Law Society should be a specialized
body with the primary responsibility to promote the objectives of the Act by
overseeing professional discipline and, where necessary, selecting appropriate
sanctions. In looking at all the factors as discussed in the foregoing
analysis, I conclude that the appropriate standard is reasonableness simpliciter.
Thus, on the question of the appropriate sanction for professional misconduct,
the Court of Appeal should not substitute its own view of the “correct” answer
but may intervene only if the decision is shown to be unreasonable. [Emphasis
added; para. 42.]
[45]
It seems to me that applying the Dunsmuir principles
results in reasonableness remaining the applicable review standard for
disciplinary panels. The issue then is whether this standard should be
different when what is assessed is the disciplinary body’s application of Charter
protections in the exercise of its discretion. In my view, the fact that Charter
interests are implicated does not argue for a different standard.
[46]
The starting point is the expertise of the tribunals in
connection with their home statutes. Citing Prof. David Mullan, Dunsmuir
confirmed the importance of recognizing that
those working day to day in the implementation
of frequently complex administrative schemes have or will develop a
considerable degree of expertise or field sensitivity to the imperatives and
nuances of the legislative regime . . . .
(para.
49, citing “Establishing the Standard of Review: The Struggle for Complexity?”
(2004), 17 C.J.A.L.P. 59, at p. 93.)
And, as Prof. Evans has
noted, the “reasons for judicial restraint in reviewing agencies’ decisions on
matters in which their expertise is relevant do not lose their cogency simply
because the question in issue also has a constitutional dimension” (p. 81).
[47]
An administrative decision-maker exercising a
discretionary power under his or her home statute, has, by virtue of expertise
and specialization, particular familiarity with the competing considerations at
play in weighing Charter values. As the Court explained in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, adopting the observations of Prof. Danielle Pinard:
[translation]
. . . administrative tribunals have the skills, expertise and knowledge in a
particular area which can with advantage be used to ensure the primacy of the
Constitution. Their privileged situation as regards the appreciation of the
relevant facts enables them to develop a functional approach to rights and
freedoms as well as to general constitutional precepts.
(p. 605, citing “Le pouvoir des tribunaux
administratifs québécois de refuser de donner effet à des textes qu’ils jugent
inconstitutionnels” (1987-88), McGill L.J. 170, at pp. 173-74.)
[48]
This case, among others, reflected the increasing
recognition by this Court of the distinct advantage that administrative bodies
have in applying the Charter to a specific set of facts and in the
context of their enabling legislation (see Conway, at paras. 79-80). As
Major J. noted in dissent in Mooring v. Canada (National Parole Board),
[1996] 1 S.C.R. 75, tailoring the Charter to a specific situation
“is more suited to a tribunal’s special role in determining rights on a case by
case basis in the tribunal’s area of expertise” (para. 64; see also C.U.P.E.,
at pp. 235-36).
[49]
These principles led the Court to apply a
reasonableness standard in Chamberlain, where McLachlin C.J. found that
a school board had acted unreasonably in refusing to approve the use of books
depicting same-sex parented families. She held that the board had failed to
respect the “values of accommodation, tolerance and respect for diversity”
which were incorporated into its enabling legislation and “reflected in our
Constitution’s commitment to equality and minority rights” (para. 21).
Similarly, in Pinet, Binnie J. used a reasonableness standard to review,
for compliance with s. 7 of the Charter , a decision of the
Ontario Review Board to return the appellant to a maximum security hospital,
observing that a reasonableness review best reflected “the expertise of the
members appointed to Review Boards” (para. 22). The purpose of the exercise
was to determine whether the decision was “the least onerous and least
restrictive” of the liberty interests of the appellant while considering
“public safety, the mental condition and other needs of the individual
concerned, and his or her potential reintegration into society” (paras. 19 and
23). In Pinet, the test was laid out in the statute, but Binnie J. made
it clear that the emphasis on the least infringing decision was a
constitutional requirement.
[50]
In Lake, where the Court was reviewing the
Minister’s decision to surrender a Canadian citizen for extradition,
implicating ss. 6(1) and 7 of the Charter , the Court again applied a
reasonableness standard. LeBel J. held that deference is owed to the
Minister’s decision, as the Minister is closer to the relevant facts required
to balance competing considerations and benefits from expertise:
This
Court has repeatedly affirmed that deference is owed to the Minister’s decision
whether to order surrender once a fugitive has been committed for extradition.
The issue in the case at bar concerns the standard to be applied in reviewing
the Minister’s assessment of a fugitive’s Charter rights. Reasonableness
is the appropriate standard of review for the Minister’s decision, regardless
of whether the fugitive argues that extradition would infringe his or her
rights under the Charter . As is evident from this Court’s
jurisprudence, to ensure compliance with the Charter in the extradition
context, the Minister must balance competing considerations, and where many
such considerations are concerned, the Minister has superior expertise. The
assertion that interference with the Minister’s decision will be limited to
exceptional cases of “real substance” reflects the breadth of the Minister’s
discretion; the decision should not be interfered with unless it is
unreasonable (Schmidt [Canada v. Schmidt, [1987] 1 S.C.R. 500])
(for comments on the standards of correctness and reasonableness, see Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9). [Emphasis added;
para. 34.]
[51]
The alternative — adopting a correctness review in every case that implicates Charter
values — will, as Prof. Mullan
noted, essentially lead to courts “retrying” a range of administrative
decisions that would otherwise be subjected to a reasonableness standard:
If
correctness review becomes the order of the day in all Charter contexts,
including the determination of factual issues and the application of the law to
those facts, then what in effect can occur is that the courts will perforce
assume the role of a de novo appellate body from all tribunals the task
of which is to make decisions that of necessity have an impact on Charter
rights and freedoms: Review Boards, Parole Boards, prison disciplinary
tribunals, child welfare authorities, and the like. Whether that kind of
judicial micro-managing of aspects of the administrative process should take
place is a highly problematic question. [Emphasis added; p. 145.]
[52]
So our choice is between saying that every time a party
argues that Charter values are implicated on judicial review, a
reasonableness review is transformed into a correctness one, or saying that
while both tribunals and courts can interpret the Charter , the
administrative decision-maker has the necessary specialized expertise and
discretionary power in the area where the Charter values are being balanced.
[53]
The decisions of legal disciplinary bodies offer a good
example of the problem of applying a correctness review whenever Charter
values are implicated. Most breaches of art. 2.03 of the Code of ethics
calling for “objectivity, moderation and dignity”, necessarily engage the
expressive rights of lawyers. That would mean that most exercises of
disciplinary discretion under this provision would be transformed from the
usual reasonableness review to one for correctness.
[54]
Nevertheless, as McLachlin C.J. noted in Catalyst,
“reasonableness must be assessed in the context of the particular type of
decision making involved and all relevant factors. It is an essentially
contextual inquiry” (para. 18). Deference is still justified on the basis of
the decision-maker’s expertise and its proximity to the facts of the case.
Even where Charter values are involved, the administrative
decision-maker will generally be in the best position to consider the impact of
the relevant Charter values on the specific facts of the case.
But both decision-makers and reviewing courts must remain conscious of the
fundamental importance of Charter values in the analysis.
[55]
How then does an administrative decision-maker apply Charter
values in the exercise of statutory discretion? He or she balances the Charter
values with the statutory objectives. In effecting this balancing, the
decision-maker should first consider the statutory objectives. In Lake,
for instance, the importance of Canada’s international obligations, its
relationships with foreign governments, and the investigation, prosecution and
suppression of international crime justified the prima facie infringement
of mobility rights under s. 6(1) (para. 27). In Pinet, the twin
goals of public safety and fair treatment grounded the assessment of whether an
infringement of an individual’s liberty interest was justified (para. 19).
[56]
Then the decision-maker should ask how the Charter
value at issue will 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. As
this Court recognized in RJR-MacDonald Inc. v. Canada (Attorney General),
[1995] 3 S.C.R. 199, at para. 160, “courts must accord some leeway to the
legislator” in the Charter balancing exercise, and the proportionality
test will be satisfied if the measure “falls within a range of reasonable
alternatives”. The same is true in the context of a review of an
administrative decision for reasonableness, where decision-makers are entitled
to a measure of deference so long as the decision, in the words of Dunsmuir,
“falls within a range of possible, acceptable outcomes” (para. 47).
[57]
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.
As LeBel J. noted in Multani, when a court is faced with reviewing an
administrative decision that implicates Charter rights, “[t]he issue
becomes one of proportionality” (para. 155), and calls for integrating the
spirit of s. 1 into judicial review. 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.
[58]
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.
Application
[59]
The Charter value at issue in this appeal is
expression, and, specifically, how it should be applied in the context of a
lawyer’s professional duties.
[60]
At the relevant time, art. 2.03 of the Code of
ethics (now modified as art. 2.00.01, O.C. 351-2004, (2004) 136 G.O. II,
1272) stated that “[t]he conduct of an advocate must bear the stamp of
objectivity, moderation and dignity”. This provision, whose constitutionality
is not impugned before us, sets out a series of broad standards that are open
to a wide range of interpretations. The determination of whether the actions
of a lawyer violate art. 2.03 in a given case is left entirely to the
Disciplinary Council’s discretion.
[61]
No party in this dispute challenges the importance of
professional discipline to prevent incivility in the legal profession, namely
“potent displays of disrespect for the participants in the justice system,
beyond mere rudeness or discourtesy” (Michael Code, “Counsel’s Duty of
Civility: An Essential Component of Fair Trials and an Effective Justice
System” (2007), 11 Can. Crim. L.R. 97, at p. 101; see also Gavin
MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline
(5th ed. 2009), at p. 8-1). The duty to encourage civility, “both inside and
outside the courtroom”, rests with the courts and with lawyers (R. v.
Felderhof (2003), 68 O.R. (3d) 481 (C.A.), at para. 83).
[62]
As a result, rules similar to art. 2.03 are found in codes of ethics that govern the
legal profession throughout Canada. The Canadian Bar Association’s Code of
Professional Conduct (2009), for example, states that a “lawyer should at
all times be courteous, civil, and act in good faith to the court or tribunal
and to all persons with whom the lawyer has dealings in the course of an action
or proceeding” (c. IX, at para. 16; see also Law Society of Upper Canada, Rules
of Professional Conduct (updated 2011), r. 6.03(5)).
[63]
But in dealing with the appropriate boundaries of
civility, the severity of the conduct must 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 (MacKenzie, at p. 26-1; R.
v. Kopyto (1987), 62 O.R. (2d) 449 (C.A.); and Attorney-General v. Times
Newspapers Ltd., [1974] A.C. 273 (H.L.)).
[64]
In Histed v. Law Society of Manitoba, 2007 MBCA 150, 225 Man. R. (2d) 74, where Steel J.A. upheld a disciplinary decision resulting from a
lawyer’s criticism of a judge, the critical role played by lawyers in assuring
the accountability of the judiciary was acknowledged:
Not
only should the judiciary be accountable and open to criticism, but lawyers
play a very unique role in ensuring that accountability. As professionals with
special expertise and officers of the court, lawyers are under a special
responsibility to exercise fearlessness in front of the courts. They must
advance their cases courageously, and this may result in criticism of
proceedings before or decisions by the judiciary. The lawyer, as an intimate
part of the legal system, plays a pivotal role in ensuring the accountability
and transparency of the judiciary. To play that role effectively, he/she must
feel free to act and speak without inhibition and with courage when the
circumstances demand it. [Emphasis added; para. 71.]
[65]
Proper respect for these expressive rights may involve
disciplinary bodies tolerating a degree of discordant criticism. As the
Ontario Court of Appeal observed in a different context in Kopyto, the
fact that a lawyer is criticizing a judge, a tenured and independent
participant in the justice system, may raise, not lower, the threshold for
limiting a lawyer’s expressive rights under the Charter . This does not
by any means argue for an unlimited right on the part of lawyers to breach the
legitimate public expectation that they will behave with civility.
[66]
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.
[67]
In this case, the 21-day suspension imposed on Mr. Doré
is not before this Court, since Mr. Doré did not appeal it either to the Court
of Appeal or to this Court. All we have been asked to determine is whether the
Disciplinary Council’s conclusion that a reprimand was warranted under art.
2.03 of the Code of ethics was a reasonable one. To make that
assessment, we must consider whether this result reflects a proportionate application
of the statutory mandate with Mr. Doré’s expressive rights.
[68]
Lawyers potentially face criticisms and pressures on a
daily basis. They are expected by the public, on whose behalf they serve, to
endure them with civility and dignity. This is not always easy where the
lawyer feels he or she has been unfairly provoked, as in this case. But it is
precisely when a lawyer’s equilibrium is unduly tested that he or she is
particularly called upon to behave with transcendent civility. On the other
hand, lawyers should not be expected to behave like verbal eunuchs. They not
only have a right to speak their minds freely, they arguably have a duty to do
so. But they are constrained by their profession to do so with dignified
restraint.
[69]
A reprimand for a lawyer does not automatically flow
from criticizing a judge or the judicial system. As discussed, such criticism,
even when it is expressed robustly, can be constructive. However in the
context of disciplinary hearings, such criticism will be measured against the
public’s reasonable expectations of a lawyer’s professionalism. As the
Disciplinary Council found, Mr. Doré’s letter was outside those expectations.
His displeasure with Justice Boilard was justifiable, but the extent of the
response was not.
[70]
The Disciplinary Council recognized that a lawyer must
have [translation] “total liberty and
independence in the defence of a client’s rights”, and “has the right to
respond to criticism or remarks addressed to him by a judge”, a right which the
Council recognized “can suffer no restrictions when it is a question of
defending clients’ rights before the courts” (paras. 68-70). It was also
“conscious” of the fact that art. 2.03 may constitute a restriction on a
lawyer’s expressive rights (para. 79). But where, as here, the judge was
called [translation] “loathsome”, arrogant and “fundamentally unjust” and was accused
by Mr. Doré of “hid[ing] behind
[his] status like a coward”; having a “chronic inability to master any social
skills”; being “pedantic, aggressive and petty in [his] daily life”; having
“obliterate[d] any humanity from [his] judicial position”; having “non-existent
listening skills”; having a “propensity to use [his] court — where [he] lack[s] the courage to hear
opinions contrary to [his] own — to launch ugly, vulgar, and mean personal attacks”, which “not only
confirms that [he is] as loathsome as suspected, but also casts shame on [him]
as a judge”; and being “[un]able to face [his] detractors without hiding behind
[his] judicial position”, the Council concluded that the [translation] “generally accepted norms
of moderation and dignity” were “overstepped” (para. 86).
[71]
In the circumstances, the Disciplinary Council found
that Mr. Doré’s letter
warranted a reprimand. 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.
[72]
I would dismiss the appeal with costs.
Appeal
dismissed with costs.
Solicitor
for the appellant: Sophie Dormeau, Outremont.
Solicitors
for the respondent Pierre Bernard, in his capacity as Assistant Syndic of the
Barreau du Québec: Mercier Leduc, Montréal.
Solicitor
for the respondents Tribunal des professions and the Attorney General of Quebec: Attorney
General of Quebec, Sainte‑Foy.
Solicitors
for the intervener the Federation of Law Societies of Canada: BCF,
Montréal.
Solicitors
for the intervener the Canadian Civil Liberties Association: Osler,
Hoskin & Harcourt, Montréal.
Solicitors
for the intervener the Young Bar Association of Montreal: Irving
Mitchell Kalichman, Westmount.