A reminder that next week is the final SEAR of the year, in which I will summarize the top administrative law cases of the year and take out a crystal ball for the next year. This will be an issue worth saving and sharing with colleagues.
Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31
Category: Doré and Charter values.
Context: I have previously written about this case: see Issue #8. A group of families applied to the Minister to allow their children to attend minority language schools offering instruction in French in the Northwest Territories. The Minister denied the application because on the terms of s.23 of the Charter, which guarantees minority language education to certain qualified rights-holders, the families did not have a constitutional right to that education. At the NWTCA, the Court concluded that “the respondent families do not fall within section 23 of the Charter” [NWTCA Decision, at para 23].
Holding: The Court, sitting as seven, unanimously allows the appeal (per Côté J): “For the reasons that follow, I conclude that the Minister was required not only to consider the values embodied in s. 23 in exercising her discretion to admit the children of non‑rights holder parents to the schools of the Francophone minority in the Northwest Territories, but also to conduct a proportionate balancing of these values and the government’s interests” [8].
Analysis: For the two years or so that I have been doing this newsletter, the story has been a good one. Vavilov settled the law of judicial review to such a considerable extent that I found myself optimistic about the state of things. However, this NWT case—and to a lesser extent, Mason v Canada (Citizenship and Immigration), 2023 SCC 21—cause me worry (see Issue #108). I wrote about this NWT case as representing the “Metastasis of Charter Vibes”—the idea that a “Charter value” can impose a legal duty even where the Charter right does not. This creates a two-track Constitution, where the “true” Constitution of Values applies where the Charter of Rights—apparently only a pale reflection of these values— does not. This is not our constitutional settlement. This theoretical distortion leads to some practical issues, ones that suggest that we may be heading back into a world where the Supreme Court’s administrative law jurisprudence says one thing but does another, with methods “evolving” alongside the composition of the Court.
Problems in Principle
Let me start with the problems in principle with this case. The oddity is the particular context of s.23, which is unique in the Canadian constitutional landscape. Not only does s.23 impose positive obligations on the state to provide certain citizens with minority language education, but it is also a right that is collective in scope [1-3]. Despite these features, s.23 is also precisely defined in the text, as the NWTCA pointed out [NWTCA Decision, at para 57]. Section 23 “was carefully crafted to give a narrow bundle of rights to a defined sub-population of Canada” [NWTCA Decision, at para 57].
Not so, for the Supreme Court. Côté J ultimately concludes that, even though this case involves non rights-holders under s.23, there is still a positive obligation on a decision-maker to consider Charter values—this is so “not only where an administrative decision directly infringes Charter rights but also in cases where it simply engages a value underlying one or more Charter rights, without limiting these rights” [64]. Decision-makers must meaningfully grapple with relevant Charter values, reflected in the governing statutory scheme, the parties’ submissions, or “because of the link between the value and the matter under consideration” [66]. More on this in a minute. For now, one need not plead a Charter right, or demonstrate that a right has been infringed according to the typical tests that are associated with each Charter right—in this case, doing so would be no help, since the case involved non-rights holders. Instead, showing that a Charter value is engaged is enough to impose an obligation on decision-makers to consider the value.
What we have, then, is an actionable Charter value that transcends the Charter’s written (and as I will point out, purposively understood) limitations. True, it is not actionable in the sense that it requires a decision-maker to render a decision consistent with the true meaning of the Charter value. Rather, it is a procedural duty, one that imposes a requirement of consideration on the decision-maker.
Even so, this is a significant move, one that was not evident—except in passing remarks—in its previous cases. Saying, as the Court did in Loyola, that the Doré framework attaches to Charter rights and values tells us nothing about the relationship between the two, and certainly does not imply that a Charter value can impose obligations on the state when the Charter right does not. This is especially so when, in the Supreme Court’s previous cases, Charter values and Charter rights seemed one in the same. In Trinity Western, for example, the majority (applying the Doré framework) simply applies the traditional Charter test associated with s.2(a). But in this NWT case, the Charter value imposes an obligation where the Charter right does not.
Nor is it enough to equate this obligation with a purposive approach to constitutional interpretation. Côté J notes that, because “Charter values are inseparable from Charter rights” (a claim that this case actually undermines considerably) “[t]he choice made by the framers to entrench certain rights in the text of the supreme law of Canada means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision-making process of the various branches of government” [75]. One can be mistaken for thinking, on this account, that Charter values are just an analogue to a purposive interpretation, especially where—as here—the Court seems to equate the purposes of s.23 with its values, which the Minister was obligated to consider.
But this is not purposive interpretation as we typically understand it. How does one square this case with the Court’s commitment to purposive interpretation as reflected in Quebec (Attorney General) v 9147-0732 Quebec Inc, 2020 SCC 32 and Toronto (City) v Ontario (Attorney General), 2021 SCC 34? Of course, the NWT case is not a case of Charter interpretation per se, but it does raise the prospect of what interests the Constitution prioritizes. In these cases, the Court wisely held that the text of the Charter contains the legal norm that courts must implement; purpose is an aid to interpretation: “A purposive interpretation of Charter rights must begin with, and be rooted in, the text” (City of Toronto, at para 14). The new, hopped-up version of Charter values endorsed in the NWT case implies instead that the value (or the purpose, or the “protection,” or…) is the legal norm that courts must implement, and the text is just a pale reflection of the true Constitution.
This was not written in the stars. Vavilov could have been integrated differently. We could have started with the basic proposition, accepted by Rowe J (who did not sit in the NWT case), McLachlin CJC, and Brown and Côté JJ in Trinity Western: “[w]hen courts review administrative decisions for compliance with the Charter, Charter rights must be the focus of the inquiry—not Charter values” (TWU, at para 166, per Rowe J). Like purposes, this account allows Charter values to play a “supporting role in the adjudication of Charter claims” (TWU, at para 170) but “[a]n analysis based on Charter values should not eclipse or supplant the analysis of whether Charter rights have been infringed” (TWU, at para 175). As I have previously written, using this orthodox starting point still allows us to integrate Vavilov, but it does so on the starting point of well-defined Charter rights. Unfortunately, Côté J does not refer to any of the contrary views in Trinity Western, nor the critics of Charter values in the lower courts, nor virtually any counter-arguments of any kind.
Practical Problems
I want to point out two practical problems that this decision creates. The first is an ill-defined “relevancy” requirement for the consideration of Charter values and the parties’ arguments. The second is reweighing.
Readers who have looked at the case will note that—maybe—the problems in principle can be remedied by the Court’s apparent integration of Vavilov into the world of Doré . Paul Daly outlines what this framework looks like here, but for our purposes, what is required is the following (1) A demonstration that a decision-maker considered a relevant Charter value [66]; (2) once engaged, a proportionality analysis nourished by Vavilov, in which the decision must show that the decision-maker adequately considered the Charter values with reference to then impact on the individual [68]. Notably, however, there are two important deviations from Vavilov’s reasonableness standard. First, and remarkably, it may be a requirement for decision-makers to consider Charter values even where not argued [66, for example in cases where there is a “link between the value and the matter under consideration].” Second, unlike under Vavilov, courts are entitled to reweigh the weight put on Charter values by decision-makers, which Côté J suggests is “a necessary consequence of the robust analysis required by Doré ” [72].
I cannot help but comment on the oddity of seeing Côté J reinforce the robustness of Doré when in Trinity Western she, along with Brown J, refuted the majority’s same claim with the pithy “[b]ut saying so does not make it so” (TWU, at para 304). And, of course, one might think it is good to see more robust reasonableness review in this context—this is a possibility that I explored, happily, in early work after Vavilov. But as I pointed out above, the way this review has been specified leaves much to be desired. We get “robustness,” but in a round-about way that undermines the Court’s committment to deference in other realms.
Consider first the “relevancy” requirement. Côté J calls on Vavilov to outline the three situations in which a Charter value will be relevant, imposing a requirement on a decision-maker. It is to the benefit of enterprising parties—especially under the “link between the value and the matter” branch—to claim broad Charter values (which may or may not be rooted in the purposes of a provision) to impose a requirement on decision-makers where the Charter right otherwise does not apply, under the typical Charter infringement tests. In this case the “link” appeared clear, but it isn’t necessarily so, and I suspect that parties will make much of this. In other words, I do not believe this is something that will be obvious to decision-makers, courts, and parties.
Relatedly, when listing the situations in which a Charter value will be “relevant,” only one of those situations involve cases where the parties’ raised Charter values in their submissions. By implication, this means that there may be an obligation to consider Charter values when a claimant (a) does not have the benefit of the right; and (b) the claimant does not argue a Charter value. This leads to several problems. First, it means that a decision-maker will need to, of her own volition, identify whether a Charter value is present (linked) to the matter, and assign it the appropriate weight, even if not argued. While decision-makers should be held to the letter of the Constitution, it is another thing to assign them a responsibility that is not easily identifiable. Second, this “robustness” seems in tension with other basic requirements of the law of judicial review. The courts have always insisted that, even in administrative contexts, Charter arguments should generally be raised at first instance to permit the development of an adequate record: see Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 at paras 44-45; Mackay v Manitoba, [1989] 2 SCR 357. This case suggests that this longstanding requirement does not apply to discretionary decisions, which leads to another problem: it appears that parties will be able to raise Charter values on judicial review, even if not argued at first instance—or at least that such a practice is now not viewed with inherent suspicion. Considering the difficulties lower courts have already had with this issue, I suspect things will now become more complex (see e.g. McCarthy v Whitefish Lake First Nation #128, 2023 FC 220, Issue #78).
Oddly, this is the exact same scenario the Supreme Court invited in its recent Mason case. As I pointed out, there, an international law issue was not argued at first instance, but the decision-maker’s failure to consider it made the decision unreasonable. Now, we have the same issue with Charter values. The Supreme Court in Vavilov settled on reasonableness as the presumptive standard of review, but in both Mason and this case it eats away at the operation of that standard. Courts shouldn’t conduct de novo review just because the court believes the issue is important enough. I can only quote Côté J at para 172 in Mason: “My colleague views the IAD’s “fail[ure] to address the legal constraints imposed by international law” as unreasonable…With respect, I would have concerns, given the emphasis in Vavilov on a “reasons first” approach, with finding a decision to be “unreasonable” based on arguments that were not put before the administrative decision maker and that do not apply to the individuals actually before that decision maker.”
Finally, consider the problem of reweighing. Courts will be invited to reweigh the weight put on a Charter value where a decision-maker considers it at first instance. This isn’t much in terms of reasonableness review. This creates a new distinction between reasonableness in constitutional cases and reasonableness in all other cases.
Conclusion
What are we left with? Many of us saw Doré as both principally and practically flawed. This case suggests that these flaws are here to stay. But perhaps we are even worse off. We now have a legally-enforceable Charter values framework that applies where the Charter right does not, and where a party does not argue it. If this is a function of s.23’s unique status in the constitutional framework, that is one thing, but I will be surprised if the problems are kept to this world. There are quite likely knock-on practical effects that courts may have to work through. The metastasis continues unabated.