A unified model of public law: Charter values and reasonableness review in Canada

Abstract

The Supreme Court of Canada concluded in its 2012 judgment in Doré that the rational connection test and the less restrictive means inquiry from the Oakes analysis are not useful when assessing the justifiability of administrative decisions limiting Charter rights. The Court instead articulated a ‘robust’ conception of proportionality that requires administrative decision makers to demonstrate only that any rights limitations that their decisions impose are proportionate ‘in the strict sense.’ This article argues that Charter values should be understood as part of a normative hierarchy of ‘justificatory resources’ to which administrative decision makers can refer in justifying rights-limiting decisions as proportionate in the strict sense. It argues further that the robust, reasons-first conception of reasonableness that the Court described in Vavilov affirms Doré’s logical architecture, marking a shift in Canadian jurisprudence toward a ‘culture of justification.’ In adopting the same approach to constitutional decisions affecting Charter rights and administrative decisions that do not engage the Charter, Doré and Vavilov construct a unified model of public law in which all public decisions must be shown to be justified by their congruence with a hierarchy of norms which has Charter values at its apex. In this unified model of public law, in which a robust conception of reasonableness is central, it is not clear what room, or need, is left for correctness review.