THE DORÉ DUTY
FUNDAMENTAL RIGHTS IN PUBLIC ADMINISTRATION
In this paper I consider an important and heretofore understudied aspect of the Supreme Court of Canada’s 2012 decision in Doré v Barreau du Québec: the imposition of a procedural duty on decision-makers to consider “Charter values” before rendering decisions. I define Charter values and procedural duties. Charter values are best understood, I suggest, as general principles which are manifested in specific provisions of the Charter. In administrative law, a procedural duty is a duty to take certain matters into account before rendering a decision, failing which the underlying decision is invalidated. With Charter values and procedural duties defined, I turn to outline the scope of the “Doré Duty”, explaining when it is triggered, the range of decisions it is applicable to and the demands it places on decision-makers. In principle, the duty applies to all administrative decisions which engage Charter values, be they exercises of discretion, individualized assessments, policy-making or statutory interpretation exercises. In order to discharge the Doré duty, a decision-maker must demonstrate that they were alive to the relevant Charter values: this will be assessed by applying the Vavilov framework for judicial review, typically under the rubric of reasonableness review. Failure to do can result in the decision being invalidated. Ultimately, I suggest, the Doré duty should not be understood as a limit on administrative decision-makers. Rather, its animating purpose is to empower decision-makers by prompting them to take account of Charter values in an informal, good faith way. The goal is not to unmoor the Charter from its textual anchors but rather to enrich our collective understanding of foundational values in Canadian public law.
Keywords:Doré, Administrative law, Charter rights, Charter values, Constitutional law, Public law, Vavilov, Administrative justice, Procedural duty, Standard of review, Reasonableness, Judicial Review
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