This paper is a critique of the Supreme Court’s decision in Doré v. Barreau du Québec and the Charter values analysis it establishes. In the paper the authors first place Doré in context by providing background on the relationship between the Charter and administrative tribunals generally. Following a review of the Court’s decision in Doré, the paper discusses the genesis and development of Charter values. The critique of Doré has three main elements: first, the undefined nature of Charter values; second, the deferential standard of review that the Supreme Court establishes for review of tribunals’ decisions applying Charter values; and third, practical issues that arise in litigating Charter values. In conclusion, the authors argue that only Charter values that have a corresponding Charter right should be recognized and adjudicated. In addition, the authors suggest that a correctness standard of review apply to the review of a tribunal’s definition and scope of a Charter right or value, so that only the tribunal’s application of Charter values would be granted deference. Constrained in this manner, Charter values can play a useful role in the exercise of administrative discretion.
Bredt, Christopher D. and Krajewska, Ewa.
"Doré: All That Glitters is Not Gold."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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