Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms

Peter Oliver and Graham Mayeda (eds), Principles and Pragmatism: Essays in Honour of Louise Charron (LexisNexis, 2014, Forthcoming)

Ottawa Faculty of Law Working Paper No. 2013-13

46 Pages Posted: 20 Nov 2013

See all articles by Paul Daly

Paul Daly

University of Ottawa - Common Law Section

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Date Written: November 20, 2013

Abstract

Canadian courts have struggled to interpret the “prescribed by law” requirement contained in section 1 of the Charter of Rights and Freedoms. Indeed, they have frustrated the achievement of its three functions: furthering the rule of law; heightening accountability; and providing additional protection for the individual. The flawed analytical framework set out by the Supreme Court of Canada in Slaight Communications (1989) was worsened by the recent decision in Doré (2012). I argue for a return to the pre-Doré situation, as outlined in the majority reasons of Justice Charron in Multani (2006).

I also argue that improvements to the analytical framework can be effected by using the tools of administrative law. Justification, transparency and intelligibility are the touchstones of reasonableness in administrative decision-making. Administrative decision-makers who fail to confine, structure and check their discretion by adopting “soft law” instruments, such as publicly available guidelines, risk seeing their decisions struck down as unreasonable by reviewing courts. And if decisions are unreasonable, they cannot be “prescribed by law” within the meaning of section 1 of the Charter. This argument responds to some of the flaws of the Slaight Communications framework and helps to achieve the functions of the “prescribed by law” requirement.

Keywords: administrative law, Canadian Charter of Rights and Freedoms, section 1 of the Charter, limits on rights "prescribed by law"

Suggested Citation

Daly, Paul, Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms (November 20, 2013). Peter Oliver and Graham Mayeda (eds), Principles and Pragmatism: Essays in Honour of Louise Charron (LexisNexis, 2014, Forthcoming), Ottawa Faculty of Law Working Paper No. 2013-13, Available at SSRN: https://ssrn.com/abstract=2357453 or http://dx.doi.org/10.2139/ssrn.2357453

Paul Daly (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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