A recent case about French-language education in the Northwest Territories has direct and significant implications for professional regulators.
In Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 (CanLII), Canada’s highest court said that, even where the Canadian Charter of Rights and Freedoms is not breached, the state must consider Charter values when making discretionary decisions. In doing so the state must apply the Doré v. Barreau du Québec, [2012] 1 S.C.R. 395 principles. That is, there must be an important objective supporting the limitation and the limitation must be proportional to the significance of the objective.
Courts reviewing such discretionary decisions must assess the weight given by the state to the competing values. The state should identify not only the Charter value, but also the goals that value is attempting to achieve. In this context, “When a decision engages Charter values, “reasonableness and proportionality become synonymous….” In the Commission scolaire francophone decision, the Court concluded that the Minister had not addressed, through written reasons or other materials, the competing interests, let alone weighed them. To roughly paraphrase the Court’s much more elegant language, the refusal appeared to be bureaucratic. The Court acknowledged that the Minister still had discretion to refuse admission to the students, but any such refusal would have to be justified by the record and reasons.
This decision likely signals an expanded assertiveness by the courts in judicial scrutiny of discretionary regulatory decisions in which a Charter protection or value is affected. For regulators of professions or industries, this would include the values of freedom of expression, equality rights, mobility, fair procedures, and transparency of regulators. Regulators need to expressly identify and address any affected Charter values.
For policy decisions, say by a regulator’s Board or Council, briefing notes should contain a section identifying and analyzing such issues. Decisions should contain an explanation (perhaps in the meeting minutes or, perhaps more appropriately, in the announcement rolling out the policy initiative) how the competing interests were balanced.
For individual regulatory (e.g., registration, complaints) or adjudicative (e.g., discipline) decisions, the regulator should proactively ensure that submissions are made to the decision-maker on any such issues. The reasons for decision should explain the decision-maker’s conclusions.
Undoubtedly, the Court is hoping that requiring regulators to go through this process will result in decisions that are consistent with the values embedded in the Charter.