Administrative Law

Chapter 4
The Charter and Its Relationship
to Administrative Law
 The Charter can provide parties to tribunal proceedings
with enhanced fairness, and with enhanced “procedural
fairness”:
1. Legal provisions in statutes of tribunals or in tribunal
procedural codes that violate the Charter, can be
struck down.
2. The Charter requires that certain procedures be
followed in certain tribunal proceedings and tribunal
hearings; a failure to follow these procedures can
result in a Tribunal decision being quashed on judicial
review
3. For example, under s. 7 of the Charter, substantial
disclosure must be given by the Crown to a person
facing deportation at the Immigration and Refugee
Board, to avoid a Charter breach.
 Application of the Charter
1. The Charter applies to all levels of
government.
2. The Charter applies to government
ministries and departments.
3. The Charter applies to all boards and
agencies created by government to
carry out delegated governmental
functions such as regulation and
adjudication.
 Continued
4. The Charter applies to both procedural
law and substantive law.
5. The Charter applies to state action:
government searches, inspections, and
interviews conducted by state agents.
 Applicability of the Charter: the
government control test
To determine whether the Charter applies to the decision-
making-body-at-issue:
A. Consider the extent to which the government exercises control
over the body, and
B. Consider the extent to which the body is carrying out functions
that are essentially “governmental” in nature.
Examples
• Public community colleges qualify as “government” under
the government control test but not universities since the
board of a college is appointed and removed by government
and because the system of community college education was
established by government, by statute, to provide an
alternative to university education.
• Universities are more autonomous from government than
colleges… so the Charter does not apply to them.
 How does the charter affect
courts?
1. Certain Charter provisions require
courts to follow certain procedures; if
they don’t, their decisions can be over-
ruled because the court’s decision will
have violated the Charter (e.g., an
accused’s right to a criminal trial within a
reasonable time)
2. Courts are required to invalidate
common law and statute laws if they
violate the Charter.
 Who does the Charter’s fairness
provisions not apply to?
Answer:
1. Private disputes between private
individuals, including involving issues of
discrimination.
Examples of private law areas where the
Charter does not apply:
- Discrimination arising in the private sector.
- Defamation arising in the private sector.
- Breach of contract arising in the private
sector.
Specific charter rights that may be available to
parties at tribunal proceedings
1. Protection against self-incrimination.
2. Due process rights (for example, the right to be
tried within a reasonable time).
3. Right not to be arbitrarily detained.
4. Right to life, liberty and security of the person.
5. Right against unreasonable search or seizure.
6. Right to an interpreter.
7. Right to additional disclosure from the
government.
9. Right to a tribunal decision without delay.
 Section 2(b) of the charter
Freedom of expression provides parties to a
tribunal proceeding with a number of
important procedural protections and
guarantees:
1. Right to speak freely.
2. Right to respond to all submissions of the other
party.
3. Right to receive information from the Tribunal
to form sound opinions.
4. Right to an open court process.
Section 11 (due process rights)
1. The Charter’s due process rights will apply where an
administrative agency can discipline an individual by
levying heavy fines or can impose a penal consequence
(where the nature of the proceeding is “criminal” and can
lead to a true penal consequence against the responding
party).
2. Factors considered in deciding whether Charter due
process rights apply to the Tribunal proceeding?
Was a charge laid?
Was an arrest made?
Was a summons issued to appear before a tribunal of
criminal jurisdiction?
Does the finding of responsibility by the tribunal lead to a
criminal record?
 Section 13 (self-incrimination)
- A witness who testifies in any proceedings has the
right not to have any incriminating evidence so given
used to incriminate that witness in any other
proceedings, except in a prosecution for perjury or
for the giving of contradictory evidence.
- This Charter right doesn’t mean witnesses or parties
can plead the fifth before Tribunals.
- Questions that are relevant and do not touch upon
privileged information must be answered by both
witnesses and parties.
 Section 14
- The Charter right to an interpreter may apply
to a administrative tribunal proceeding.
- The decision maker has to 1) hold a hearing
and 2) the consequences of the decision
have to be significant.
- Example: at the Immigration and Refugee
Board, a refugee facing deportation at a
refugee protection hearing would be entitled
to a French or English interpreter if they
couldn’t understand the language of the
Tribunal proceeding.
 Section 15 of the Charter
1. Discriminatory policies or
discriminatory decisions cannot be
made or applied by administrative
tribunals.
2. Subordinate law that is made by
government actors cannot be
discriminatory.
3. Section 15’s prohibition against
discrimination also applies to the
discretionary decisions made by tribunal
officials.
Legal Test to Prove Discrimination under
the Charter
1. There must be differential treatment
between the Applicant and someone
else similarly placed.
2. This differential treatment must be
based on a prohibited ground of
discrimination set out in s. 15(1).
3. The discrimination must undermine the
Charter applicant’s dignity and self-
worth.
 Limits on charter rights
1. Section 1 of the Charter allows for certain charter
rights and freedoms to be limited by government
as can be “demonstrably justified in a free and
democratic society”. Such as the presumption of
innocence or the right not to be arbitrarily detained
by police.
Section 1 test that needs to be met:
1. Prescribed by law.
2. Sufficiently important objective.
3. Rational connection.
4. Minimal impairment.
5. Benefits must outweigh costs.
 The “Notwithstanding” Clause
1. Federal and provincial parliaments can limit
certain Charters rights through the exercise of
the notwithstanding clause (section 2 and
sections 7 through 15 of the Charter may be
limited)
2. The notwithstanding clause requires the
government to include language in the statute
that expressly states that the provisions of the
Act operate “notwithstanding” the Charter
breach.
3. The notwithstanding clause must be renewed
every five years.
 Remedies for a Charter Violation
Section 24 of the Charter
1. This section allows for damages for the harm
suffered by the Charter applicant due to the
Charter breach.
2. This section allows for the exclusion of evidence
from a Tribunal hearing.
3. This section allows for the awarding of costs to
the Charter applicant.
Qualification for Tribunals to award a Charter
remedy:
- A Tribunal’s enabling statute limits what remedies,
including Charter remedies, it can award.
 Remedies – continued
Section 52(1) of C.A. – under this
subsection, a court of competent
jurisdiction has the authority to strike
down laws that breach the Charter:
1. A Tribunal may have the power to strike
down unconstitutional laws under s. 52(1)
if it is a court of “competent jurisdiction”.
2. The Tribunal’s governing statute made by
Parliament, must state that it has the
power to decide “all questions of law”, for
it to be a court of competent jurisdiction.