Professionals can run up against ethical rules in many possible ways, but the most controversial ways will often involve speech or other forms of expression. Perhaps a professional verbally harasses or insults a patient or another professional. Perhaps a professional violates a rule involving advertising. More controversially, a professional may engage in controversial speech on moral or political topics. Notable examples might be public speech against homosexuals (Kempling v. British Columbia College of Teachers, 2004 BCCA 535), or a demonstration and picketing against a Planned Parenthood office (Whatcott v. Saskatchewan Association of Licensed Practical Nurses, 2008 SKCA 6). Recently, the means by which professional regulatory tribunals should address Charter issues, and how courts should judicially review such discipline decisions (to decide if a regulator has applied a conduct rule in a way that improperly violates a professional’s Charter rights or freedoms) was addressed by the Supreme Court of Canada in Doré v. Barreau du Quebec, 2012 SCC 12 (March 22, 2012). The gist of the decision is that professional regulatory tribunals must balance statutory objectives with Charter values, in order to ensure a minimal impairments of Charter values which are also proportional to the objectives. Courts will review such balancing by tribunals on a standard of reasonableness.
Facts: In Doré, a judge of the Superior Court of Quebec criticized a lawyer, who was appearing before that judge. In written reasons, the judge accused the lawyer of “bombastic rhetoric and hyperbole, called the lawyer’s request for a stay “totally ridiculous” and one of his arguments “idle quibbling”. In a private letter to the judge, the lawyer called the judge loathsome, arrogant and fundamentally unjust, accusing him of hiding behind his status like a coward, of having a chronic inability to master any social skills, of being pedantic, aggressive and petty, and of having a propensity to use his court to launch ugly, vulgar and mean personal attacks. [10]
A complaint against the lawyer alleged a violation of an ethical rule requiring that the conduct of advocates “bear the stamp of objectivity, moderation and dignity.” The Disciplinary Council reprimanded the lawyer and suspended him for 21 days, finding that the ethical rule reasonably limited the lawyer’s freedom of expression under s.2(b) of the Canadian Charter of Rights and Freedoms. On an internal appeal, the lawyer argued that the sanction, instead of the conduct rule itself, violated his freedom of expression. The lawyer sought judicial review, and the matter of the reprimand wound its way up to the Supreme Court of Canada.
Administrative decision-makers must apply Charter values: The court decided that the normal method of determining whether a law infringing a right or freedom is justifiable, the Oakes test, does not replace the administrative law framework. Instead, whether an adjudicated decision violates the Charter depends on whether a decision-maker has “disproportionately, and therefore unreasonably, limited a Charter right.” [6] The reasonableness analysis centres on proportionality, to ensure that a decision interferes with the relevant Charter guarantee “no more than is necessary given the statutory objectives”. [7]
In particular, the court noted [at paragraph 29] the established principle that “though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.” Baker v. Canada (Minister of Citizenship and Immigration), [1992] 2 S.C.R. 817 (S.C.C.) at paragraph 56.
Rather than finding that the Oakes test should be applied directly to administrative decisions, the court found that “administrative decisions are always required to consider fundamental values.” [35] And further: “…administrative bodies are empowered, and indeed required, to consider Charter values within their scope of expertise.” [35] As a result, the reasonableness standard of review applying to disciplinary panels would also apply to whether an administrative decision-maker has taken sufficient account of Charter values in making a discretionary decision. [43- 45] But, the court said, “both decision-makers and reviewing courts must remain conscious of the fundamental importance of Charter values in the analysis. [54]
NB: When a tribunal must determine the constitutionality of a law, as distinct from an exercise of discretion under a law, the standard of review is still one of correctness. [43]
The practical approach for decision-makers: Practically speaking, administrative decision-makers apply Charter values by balancing the Charter values with the statutory objectives. [55] The decision-maker must consider the statutory objectives, [55] and ask how the Charter value will be best protected. [56] “This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives.” [56] Thus, “On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play.” [57]
In the context of Dore’s civility, professional discipline to prevent incivility was important, [61] but the severity of the conduct had to be interpreted in light of the expressive rights guaranteed by the Charter, including the public benefit in ensuring the right of lawyers to express themselves about the justice system. [63] Proper respect for these rights “may involve disciplinary bodies tolerating a degree of discordant criticism.” [65] In assessing the reasonableness of a reprimand, the court looked at whether that result reflected “a proportionate application of the statutory mandate with Mr. Doré’s expressive rights.” [67] On one hand, lawyers are expected to endure criticisms and pressures with civility and dignity. [68] On the other hand, “lawyers should not be expected to behave like verbal eunuchs.” [68] Here, Doré’s letter fell outside the public’s reasonable expectations of a lawyer’s professionalism. [69] The lawyer’s language here overstepped the generally accepted norms of moderation and dignity. [70]
Commentary: The Supreme Court of Canada in this case, and in the case of R. v. Conway, 2010 SCC 22 (see our blog summary here) has made clear that tribunals must address Charter issues which are raised before them (unless expressly exempted by their enabling statute). The application of constitutional law is complex, and certainly, the application of a reasonableness standard to how committee accounts for Charter values raises the difficult issue of different regulators reaching different conclusions about the extent to which the Charter protects freedoms or rights in similar situations.
Doré v. Barreau du Quebec, 2012 SCC 12 (March 22, 2012)