Charter Right or Charter Lite? Administrative Discretion and the Charter

Abstract

The Supreme Court of Canada has vacillated in its guidance about the incorporation of the Charter into the exercise of discretion. The author contends that Doré’s attempt to synchronize proportionality analysis (derived from constitutional adjudication) with deferential reasonableness review (derived from administrative law) is unsatisfactory. The replacement of Charter ‘right’ or ‘freedom’ with Charter ‘value’ obscures the recognition of rights and freedoms in play. The administrative law proportionality analysis that the Court endorses in Doré does not respect the primacy or priority of Charter rights, and curial deference toward the outcomes it produces exacerbate the dilution of rights protection. The author warns of the negative incentives this creates for governance and the rule of law. She proposes a set of alternative factors and considerations that ought to animate the exercise of discretion, and judicial review of discretion, where Charter rights or freedoms are at stake.

Keywords: Canadian Charter of Rights and Freedoms, administrative law, discretion, deference, standard of review