An administrative decision is unreasonable if it fails to meaningfully consider a relevant constitutional convention (i.e. a convention that forms part of the factual and legal context for the decision) (Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4, ¶¶21, 40, 57, 58). Such a decision also may be incorrect, as the majority of the Court suggested (¶16) and as Côté J. found in concurring reasons (¶¶74, 83).
An administrative decision is also unreasonable if it fails to meaningfully consider relevant Charter values (Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment, 2023 SCC 31, ¶¶65-68). In that case, Côté J. insisted for the Court that the deference-as-reasonableness-as-proportionality of Doré is compatible with reasonableness review under Vavilov.
Uncertainty abounds. The standards of review for administrative decisions that implicate constitutional issues are increasingly obscure. Recall the Court’s recent judgment in Societé des Casinos du Québec Inc., which held that the standard of review is correctness for findings of mixed law and fact made in connection with a constitutional question, and which sits awkwardly alongside earlier judgments that applied the standard of reasonableness to findings of mixed law and fact made in connection with the constitutional duty to consult (Haida Nation ¶¶61-63; Carrier Sekani Tribal Council ¶¶65, 78).
Decision makers must both consider Charter values and respect Charter rights: those rights and the values that animate them constitute distinct considerations and provide separate grounds for challenge (CSF NWT, ¶65).
The constitutional duty to consult is similarly animated by the constitutional imperative of reconciliation: the purpose of consultation is reconciliation. Since decisions can be challenged for failure to meaningfully consult, can they also be challenged for failure to meaningfully consider the constitutional imperative of reconciliation? If so, which standard of review would apply? If not, why is reconciliation treated differently from other unwritten parts of the Constitution? “Sui generis” is not an answer. It just begs more questions.
Charter values have an interpretive function: they can be used by courts to interpret Charter rights. Their relationship is similar, if not identical, to the relationship between “unwritten” constitutional principles and the constitutional provisions that embody or express those principles. As stipulated by the majority in Toronto (City), unwritten principles “may be used in the interpretation of constitutional provisions” (¶55).
The honour of the Crown is an unwritten constitutional principle (Little Salmon ¶42; Manitoba Metis Federation, 2013 SCC 14 at ¶69). Courts can and do use that principle to interpret s. 35 of the Constitution Act, 1982, as well as the rights recognized by that provision. So, if the honour of the Crown performs the same function vis-à-vis s. 35 as the Charter values of “the preservation and development of minority language communities” play with respect to s. 23 Charter rights, can administrative decisions be challenged for failure to meaningfully consider the honour of the Crown? If so, again, which standard of review would apply? If not, why is the honour of the Crown treated differently from other unwritten principles?
This doctrinal confusion has deep structural origins. Vavilov is only partly to blame and, even then, its limits and complications arise because of its interaction with other cases and doctrines that suffer the same structural issues.
Constitutional conventions and Charter values are only two of the unwritten elements of the Canadian constitution.[1] Other ghosts in the machine include constitutional principles and constitutional imperatives. As these categories proliferate and instances manifest, their significance, content, and roles become increasingly vague.These problems persist whether we approach them through an essentialist or a pragmatic lens: it is no longer clear what these unwritten elements are or what we should do with them. Subsequent posts will seek answers in structural analysis.
[1] Of course, “unwritten” is not an entirely accurate or helpful label, as it implies a false dichotomy in which other parts of the Constitution are fully “written.” In fact, every part of our Constitution lies somewhere on a spectrum between tacit and explicit. However, that debate is less about the nature of the Constitution and much more about theories of legitimacy, which will hopefully provide topics for future posts. For now, for convenience and compatibility with most recent Court practice, I will refer to “unwritten” principles.
Leave a Reply