Doré v. Barreau du Québec

Doré v. Barreau du Québec
Collection
Supreme Court Judgments
Date
2012-03-22
Neutral citation
2012 SCC 12
Report
[2012] 1 SCR 395
Case number
33594
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Quebec
Subjects
Administrative law
Professional law
Notes
SCC Case Information: 33594
Decision Content
SUPREME COURT OF CANADA
Citation: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395
Date: 20120322
Docket: 33594
Between:
Gilles Doré
Appellant
and
Pierre Bernard, in his capacity as Assistant Syndic of the Barreau du Québec,
Tribunal des professions and Attorney General of Quebec
Respondents
- and -
Federation of Law Societies of Canada, Canadian Civil Liberties Association
and Young Bar Association of Montreal
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Fish, Abella, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 72)
Abella J. (McLachlin C.J. and Binnie, LeBel, Fish, Rothstein and Cromwell JJ. concurring)
Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395
Gilles Doré Appellant
v.
Pierre Bernard, in his capacity as Assistant Syndic of
the Barreau du Québec, Tribunal des professions and
Attorney General of Quebec Respondents
and
Federation of Law Societies of Canada,
Canadian Civil Liberties Association and
Young Bar Association of Montreal Interveners
Indexed as: Doré v. Barreau du Québec
2012 SCC 12
File No.: 33594.
2011: January 26; 2012: March 22.
Present: McLachlin C.J. and Binnie, LeBel, Fish, Abella, Rothstein and Cromwell JJ.
on appeal from the court of appeal for quebec
Administrative law — Judicial review — Standard of review — Disciplinary council — Lawyer challenging constitutionality of council’s decision — Proper approach to judicial review of discretionary administrative decisions engaging Charter protections — Whether framework developed in R. v. Oakes appropriate to determine if discretionary administrative decisions comply with Canadian Charter of Rights and Freedoms .
Law of professions — Discipline — Barristers and solicitors — Lawyer writing private letter to judge and criticizing him — Disciplinary council finding lawyer in breach of duty to behave with objectivity, moderation and dignity and reprimanding him — Whether council properly balanced relevant Charter values with statutory objectives — Whether decision reasonable — Code of ethics of advocates, R.R.Q. 1981, c. B-1, r. 1, art. 2.03.
D appeared before a judge of the Superior Court of Quebec on behalf of a client. In the course of D’s argument, the judge criticized D. In his written reasons rejecting D’s application, the judge levied further criticism, accusing D of using bombastic rhetoric and hyperbole, of engaging in idle quibbling, of being impudent and of doing nothing to help his client discharge his burden. D then wrote a private letter to the judge calling him loathsome, arrogant and fundamentally unjust, and 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.
The Assistant Syndic of the Barreau du Québec filed a complaint against D based on that letter alleging that D had violated art. 2.03 of the Code of ethics of advocates, which states that the conduct of advocates “must bear the stamp of objectivity, moderation and dignity”. The Disciplinary Council of the Barreau du Québec found that the letter was likely to offend, rude and insulting, that the statements had little expressive value, and that the judge’s conduct, which resulted in a reprimand from the Canadian Judicial Council, could not be relied on as justification for it. The Council rejected D’s argument that art. 2.03 violated s. 2 (b) of the Canadian Charter of Rights and Freedoms , finding that the limitation on freedom of expression was reasonable. Based on the seriousness of D’s conduct, the Council reprimanded D and suspended his ability to practice law for 21 days. On appeal to the Tribunal des professions, D abandoned his constitutional challenge to the specific provision, arguing instead that the sanction itself violated his freedom of expression. The Tribunal found that D had exceeded the objectivity, moderation and dignity expected of him and that the decision to sanction D was a minimal restriction on his freedom of expression. On judicial review, the Superior Court of Quebec upheld the decision of the Tribunal.
Before the Quebec Court of Appeal, D no longer appealed the actual sanction of 21 days, challenging only the decision to reprimand him as a violation of the Charter . The Court of Appeal applied a full Oakes analysis under s. 1 of the Charter and upheld the reprimand. It found that D’s letter had limited importance compared to the values underlying freedom of expression, that the Council’s decision had a rational connection to the important objective of protecting the public and that the effects of the decision were proportionate to its objectives.
Held: The appeal from the result should be dismissed.
To determine whether administrative decision-makers have exercised their statutory discretion in accordance with Charter protections, the review should be in accordance with an administrative law approach, not a s. 1 Oakes analysis. The standard of review is reasonableness.
In assessing whether a law violates the Charter , we are balancing the government’s pressing and substantial objectives against the extent to which they interfere with the Charter right at issue. If the law interferes with the right no more than is reasonably necessary to achieve the objectives, it will be found to be proportionate, and, therefore, a reasonable limit under s. 1 . But in assessing whether an adjudicated decision violates the Charter , we are engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right. In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.
There is nothing in the administrative law approach which is inherently inconsistent with the strong protection of the Charter ’s guarantees and values. An administrative law approach recognizes that administrative decision-makers are both bound by fundamental values and empowered to adjudicate them, and that administrative discretion is exercised in light of constitutional guarantees and the values they reflect. An administrative decision-maker exercising a discretionary power under his or her home statute, has, by virtue of expertise and specialization, particular familiarity with the competing considerations at play in weighing Charter values and will generally be in the best position to consider the impact of the relevant Charter guarantee on the specific facts of the case. Under a robust conception of administrative law, discretion is exercised in light of constitutional guarantees and the values they reflect.
When applying Charter values in the exercise of statutory discretion, an administrative decision-maker must balance Charter values with the statutory objectives by asking how the Charter value at issue will best be protected in light of those objectives. 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.
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 rights and values at play. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives. In the Charter context, the reasonableness analysis is one that centres on proportionality, that is, on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives. If the decision is disproportionately impairing of the guarantee, it is unreasonable. If, on the other hand, it reflects a proper balance of the mandate with Charter protection, it is a reasonable one. But both decision-makers and reviewing courts must remain conscious of the fundamental importance of Charter values in the analysis.
Here, the decision to suspend D for 21 days was not before the Court. The only issue was whether the Council’s decision to reprimand D reflected a proportionate balancing of the lawyer’s expressive rights with its statutory mandate to ensure that lawyers behave with “objectivity, moderation and dignity” in accordance with art. 2.03 of the Code of ethics. In dealing with the appropriate boundaries of civility for a lawyer, the severity of the conduct must be interpreted in light of the expressive rights guaranteed by the Charter , and, in particular, the public benefit in ensuring the right of lawyers to express themselves about the justice system in general and judges in particular. We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer’s right to expression and the public’s interest in open discussion. As with all disciplinary decisions, this balancing is a fact-dependent and discretionary exercise.
Proper respect for these expressive rights may involve disciplinary bodies tolerating a degree of discordant criticism. The fact that a lawyer is criticizing a judge, a tenured and independent participant in the justice system, may raise, not lower, the threshold for limiting a lawyer’s expressive rights under the Charter . This does not, however, argue for an unlimited right on the part of lawyers to breach the legitimate public expectation that they will behave with civility. Lawyers potentially face criticisms and pressures on a daily basis. They are expected by the public, on whose behalf they serve, to endure them with civility and dignity. This is not always easy where the lawyer feels he or she has been unfairly provoked, as in this case. But it is precisely when a lawyer’s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility. On the other hand, lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint.
A reprimand for a lawyer does not automatically flow from criticizing a judge or the judicial system. Such criticism, even when it is expressed vigorously, can be constructive. However in the context of disciplinary hearings, such criticism will be measured against the public’s reasonable expectations of a lawyer’s professionalism. As the Disciplinary Council found, D’s letter was outside those expectations. His displeasure with the judge was justifiable, but the extent of the response was not.
In light of the excessive degree of vituperation in the letter’s context and tone, the Council’s decision that D’s letter warranted a reprimand represented a proportional balancing of D’s expressive rights with the statutory objective of ensuring that lawyers behave with “objectivity, moderation and dignity”. The decision is, as a result, a reasonable one.
Cases Cited
Discussed: Multani v. Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Oakes, [1986] 1 S.C.R. 103; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772; Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1 S.C.R. 72; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281; referred to: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; R. v. Lanthier, 2001 CanLII 9351; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; R. v. Daviault, [1994] 3 S.C.R. 63; R. v. Swain, [1991] 1 S.C.R. 933; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; R.W.D.S.U., Local 558 v. Pepsi‑Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Felderhof (2003), 68 O.R. (3d) 481; R. v. Kopyto (1987), 62 O.R. (2d) 449; Attorney‑General v. Times Newspapers Ltd., [1974] A.C. 273; Histed v. Law Society of Manitoba, 2007 MBCA 150, 225 Man. R. (2d) 74.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b).
Code of ethics of advocates, R.R.Q. 1981, c. B‑1, r. 1, arts. 2.00.01, 2.03 [rep. (2004) 136 G.O. II, 1272].
Authors Cited
Bernatchez, Stéphane. “Les rapports entre le droit administratif et les droits et libertés: la révision judiciaire ou le contrôle constitutionnel?” (2010), 55 McGill L.J. 641.
Canadian Bar Association. Code of Professional Conduct. Ottawa: The Association, 2009 (online: http://www.cba.org/CBA/activities/pdf/codeofconduct.pdf).
Cartier, Geneviève. “The Baker Effect: A New Interface Between the Canadian Charter of Rights and Freedoms and Administrative Law — The Case of Discretion”, in David Dyzenhaus, ed., The Unity of Public Law. Portland, Oregon: Hart, 2004, 61.
Code, Michael. “Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System” (2007), 11 Can. Crim. L.R. 97.
Dyzenhaus, David, and Evan Fox‑Decent. “Rethinking the Process/Substance Distinction: Baker v. Canada” (2001), 51 U.T.L.J. 193.
Evans, J. M. “The Principles of Fundamental Justice: The Constitution and the Common Law” (1991), 29 Osgoode Hall L.J. 51.
Gratton, Susan L., and Lorne Sossin. “In Search of Coherence: The Charter and Administrative Law under the McLachlin Court”, in David A. Wright and Adam M. Dodek, eds., Public Law at the McLachlin Court: The First Decade. Toronto: Irwin Law, 2011, 145.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp., vol. 2. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2011, release 1).
Law Society of Upper Canada. Rules of Professional Conduct, updated April 28, 2011 (online: http://www.lsuc.on.ca/with.aspx?id=671).
Liston, Mary. “Governments in Miniature: The Rule of Law in the Administrative State”, in Colleen M. Flood and Lorne Sossin, eds., Administrative Law in Context. Toronto: Emond Montgomery, 2008, 77.
MacKenzie, Gavin. Lawyers and Ethics: Professional Responsibility and Discipline, 5th ed. Toronto: Carswell, 2009.
Mullan, David. “Administrative Tribunals and Judicial Review of Charter Issues after Multani” (2006), 21 N.J.C.L. 127.
APPEAL from a judgment of the Quebec Court of Appeal (Rochon, Dufresne and Léger JJ.A.), 2010 QCCA 24, [2010] R.J.Q. 77, 326 D.L.R. (4th) 749, [2010] Q.J. No. 88 (QL), 2010 CarswellQue 13368, affirming a decision of Déziel J., 2008 QCCS 2450 (CanLII), [2008] J.Q. no 5222 (QL), 2008 CarswellQue 5285, dismissing an application for judicial review of a decision of the Tribunal des professions, 2007 QCTP 152 (CanLII), [2007] D.T.P.Q. no 152 (QL). Appeal dismissed.
Sophie Dormeau and Sophie Préfontaine, for the appellant.
Claude G. Leduc and Luce Bastien, for the respondent Pierre Bernard, in his capacity as Assistant Syndic of the Barreau du Québec.
Dominique A. Jobin and Noémi Potvin, for the respondents Tribunal des professions and the Attorney General of Quebec.
Babak Barin and Frédéric Côté, for the intervener the Federation of Law Societies of Canada.
David Grossman, Sylvain Lussier, Julien Morissette and Annie Gallant, for the intervener the Canadian Civil Liberties Association.
Mathieu Bouchard and Audrey Boctor, for the intervener the Young Bar Association of Montreal.
The judgment of the Court was delivered by
[1] Abella J. — The focus of this appeal is on the decision of a disciplinary body to reprimand a lawyer for the content of a letter he wrote to a judge after a court proceeding.
[2] The lawyer does not challenge the constitutionality of the provision in the Code of ethics under which he was reprimanded. Nor, before us, does he challenge the length of the suspension he received. What he does challenge, is the constitutionality of the decision itself, claiming that it violates his freedom of expression under the Canadian Charter of Rights and Freedoms .
[3] This raises squarely the issue of how to protect Charter guarantees and the values they reflect in the context of adjudicated administrative decisions. Normally, if a discretionary administrative decision is made by an adjudicator within his or her mandate, that decision is judicially reviewed for its reasonableness. The question is whether the presence of a Charter issue calls for the replacement of this administrative law framework with the Oakes test, the test traditionally used to determine whether the state has justified a law’s violation of the Charter as a “reasonable limit” under s. 1 .
[4] It seems to me to be possible to reconcile the two regimes in a way that protects the integrity of each. The way to do that is to recognize that an adjudicated administrative decision is not like a law which can, theoretically, be objectively justified by the state, making the traditional s. 1 analysis an awkward fit. On whom does the onus lie, for example, to formulate and assert the pressing and substantial objective of an adjudicated decision, let alone justify it as rationally connected to, minimally impairing of, and proportional to that objective? On the other hand, the protection of Charter guarantees is a fundamental and pervasive obligation, no matter which adjudicative forum is applying it. How then do we ensure this rigorous Charter protection while at the same time recognizing that the assessment must necessarily be adjusted to fit the contours of what is being assessed and by whom?
[5] We do it by recognizing that while a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality. I see nothing in the administrative law approach which is inherently inconsistent with the strong Charter protection — meaning its guarantees and values — we expect from an Oakes analysis. The notion of deference in administrative law should no more be a barrier to effective Charter protection than the margin of appreciation is when we apply a full s. 1 analysis.
[6] In assessing whether a law violates the Charter , we are balancing the government’s pressing and substantial objectives against the extent to which they interfere with the Charter right at issue. If the law interferes with the right no more than is reasonably necessary to achieve the objectives, it will be found to be proportionate, and, therefore, a reasonable limit under s. 1 . In assessing whether an adjudicated decision violates the Charter , however, we are engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right. In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.
[7] As this Court has noted, most recently in Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, the nature of the reasonableness analysis is always contingent on its context. In the Charter context, the reasonableness analysis is one that centres on proportionality, that is, on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives. If the decision is disproportionately impairing of the guarantee, it is unreasonable. If, on the other hand, it reflects a proper balance of the mandate with Charter protection, it is a reasonable one.
[8] In this case, the discipline committee’s decision to reprimand the lawyer reflected a proportionate balancing of its public mandate to ensure that lawyers behave with “objectivity, moderation and dignity” with the lawyer’s expressive rights. It is, as a result, a reasonable one.
Background
[9] Gilles Doré was counsel for Daniel Lanthier in criminal proceedings. On June 18 and 19, 2001, Mr. Doré appeared before Boilard J. in the Superior Court of Quebec seeking a stay of proceedings or, in the alternative, the release of his client on bail. In the course of Mr. Doré’s argument, Justice Boilard said about him that [translation] “an insolent lawyer is rarely of use to his client”. In his written reasons rejecting Mr. Doré’s application on June 21, 2001, Boilard J. levied further criticism (R. v. Lanthier, 2001 CanLII 9351). He accused Mr. Doré of [translation] “bombastic rhetoric and hyperbole” and said that the court must “put aside” Mr. Doré’s “impudence”. Justice Boilard characterized Mr. Doré’s request for a stay as “totally ridiculous” and one of his arguments as “idle quibbling”. Finally, he said that “fixated on or obsessed with his narrow vision of reality, which is not consistent with the facts, Mr. Doré has done nothing to help his client discharge his burden”.
[10] On June 21, 2001, Mr. Doré wrote a private letter to Justice Boilard, stating:
[translation]
WITHOUT PREJUDICE OR ADMISSION
Sir,
I have just left the Court. Just a few minutes ago, as you hid behind your status like a coward, you made comments about me that were both unjust and unjustified, scattering them here and there in a decision the good faith of which will most likely be argued before our Court of Appeal.
Because you ducked out quickly and refused to hear me, I have chosen to write a letter as an entirely personal response to the equally personal remarks you permitted yourself to make about me. This letter, therefore, is from man to man and is outside the ambit of my profession and your functions.
If no one has ever told you the following, then it is high time someone did. Your chronic inability to master any social skills (to use an expression in English, that language you love so much), which has caused you to become pedantic, aggressive and petty in your daily life, makes no difference to me; after all, it seems to suit you well.
Your deliberate expression of these character traits while exercising your judicial functions, however, and your having made them your trademark concern me a great deal, and I feel that it is appropriate to tell you.
Your legal knowledge, which appears to have earned the approval of a certain number of your colleagues, is far from sufficient to make you the person you could or should be professionally. Your determination to obliterate any humanity from your judicial position, your essentially non-existent listening skills, and your propensity to use your court — where you lack the courage to hear opinions contrary to your own — to launch ugly, vulgar, and mean personal attacks not only confirms that you are as loathsome as suspected, but also casts shame on you as a judge, that most extraordinarily important function that was entrusted to you.
I would have very much liked to say this to your face, but I highly doubt that, given your arrogance, you are able to face your detractors without hiding behind your judicial position.
Worst of all, you possess the most appalling of all defects for a man in your position: You are fundamentally unjust. I doubt that that will ever change.
Sincerely,
Gilles Doré
P.S. As this letter is purely personal, I see no need to distribute it.
(C.A. judgment, 2010 QCCA 24, 326 D.L.R. (4th) 749, at para. 5)
[11] The next day, June 22, 2001, Mr. Doré wrote to Chief Justice Lyse Lemieux, with a copy to Justice Boilard. He made it clear that he was not filing a complaint with her against Justice Boilard. Instead, Mr. Doré respectfully requested that he not be required to appear before Justice Boilard in the future since he was concerned that he could not properly represent his clients before him.
[12] On July 10, 2001, Mr. Doré complained to the Canadian Judicial Council about Justice Boilard’s conduct. On July 13, 2001, Chief Justice Lemieux sent a copy of the letter Mr. Doré had sent to Justice Boilard to the Syndic du Barreau, the body that disciplines lawyers in Quebec.
[13] In March 2002, the Assistant Syndic filed a complaint against Mr. Doré based on his letter to Justice Boilard. The complaint alleged that Mr. Doré had violated both art. 2.03 of the Code of ethics of advocates, R.R.Q. 1981, c. B-1, r. 1, and Mr. Doré’s oath of office. Article 2.03 stated: “The conduct of an advocate must bear the stamp of objectivity, moderation and dignity.”
[14] In the interval between the filing of the Assistant Syndic’s complaint against Mr. Doré and the actual proceedings against him, a committee of judges appointed by the Judicial Council to look into Mr. Doré’s complaint communicated its conclusions to Mr. Doré and Justice Boilard in letters sent on July 15, 2002. The committee found that Justice Boilard had made [translation] “unjustified derogatory remarks to Mr. Doré” stating, in part:
[translation] . . . to use the words “bombastic rhetoric and hyperbole” and “impudence” in referring to counsel arguing a case before you, quite clearly in good faith, is unnecessarily insulting. To reply to counsel who submits that you have not allowed him to argue his case “that an insolent lawyer is rarely of use to his client” not only is unjustified in the circumstances, but could tarnish counsel’s professional reputation in the eyes of his client, his peers and the public. To say to counsel arguing a case before you that “I have the impression this is going to be tiresome” is to gratuitously degrade him. To describe a procedure before the court as “totally ridiculous” is unnecessarily humiliating. It is the panel’s opinion that such comments would seem to show contempt for counsel not only as an individual but also as a professional.
The evidence reveals a flagrant lack of respect for an officer of the court, namely Mr. Doré, who was nevertheless at all times respectful to the court. The evidence also shows signs of impatience on your part that are surprising in light of every judge’s duty to listen calmly to the parties and to counsel. It is the panel’s opinion that in so abusing your power as a judge, you not only tarnished your image as a dispenser of justice, but also undermined the judiciary, the image of which has unfortunately been diminished. The panel reminds you that your independence and your authority as a judge do not exempt you from respecting the dignity of every individual who argues a case before you. Dispensing justice while gratuitously insulting counsel is befitting neither for the judge nor for the judiciary.
Having also read the judgments of the Quebec Court of Appeal in R. v. Proulx, R. v. Bisson and R. v. Callochia, the panel observed that you tend to use your platform to unjustly denigrate counsel appearing before you. The transcript of the hearing of April 9, 2002 in Sa Majesté la Reine v. Sébastien Beauchamp, which contains evidence of personal attacks on another lawyer, also confirmed that the case raised in Mr. Doré’s complaint is neither unique nor isolated, but shows that extreme conduct and comments seem to form part of a more generalized attitude. In the panel’s view, the fact that such an attitude could persist despite warnings from the Court of Appeal is troubling.
The panel finds that the impatience you showed and the immoderate comments you made to an officer of the court, Mr. Doré, are unacceptable and merit an expression of the panel’s disapproval under subsection 55(2) of the Canadian Judicial Council By-Laws.
The panel notes that you have deferred to its decision and assumes that the fact that Mr. Doré has made a complaint will lead you to reflect on this and will remind you of your duty as a judge to show respect and courtesy to all counsel who appear before you.
[15] On July 22, 2002, after receiving this reprimand, Justice Boilard recused himself from a complex criminal trial involving the Hell’s Angels, a trial related to the trial of Daniel Lanthier in which Mr. Doré had acted. As a result of this recusal, the Attorney General of Quebec requested the Canadian Judicial Council to conduct an inquiry. The Judicial Council concluded that Justice Boilard’s recusal had not constituted misconduct.
[16] As for Mr. Doré, the proceedings before the Disciplinary Council of the Barreau du Québec took place between April 2003 and January 2006. In its January 18, 2006 decision, the Disciplinary Council found that Mr. Doré’s letter was [translation] “likely to offend and is rude and insulting” (2006 CanLII 53416, at para. 58). It concluded that his statements had little expressive value, as they were “merely opinions, perceptions and insults” (para. 62). The Disciplinary Council rejected Mr. Doré’s submission that his letter was private, since it was written by him as a lawyer. It also concluded that Justice Boilard’s conduct could not be relied on as justification for the letter.
[17] The Disciplinary Council rejected Mr. Doré’s argument that art. 2.03 violated s. 2 (b) of the Charter . While acknowledging that the provision infringed on freedom of expression, the Disciplinary Council found that
[translation] [t]his is a limitation on freedom of expression that is entirely reasonable, even necessary, in the Canadian legal system, where lawyers and judges must work together in the interest of justice. [para. 88]
Moreover, it concluded that Mr. Doré had willingly joined a profession that was subject to rules of discipline that he knew would limit his freedom of expression. While the rules may [translation] “be seen as restrictions imposed on the members of the Barreau in comparison to the freedom that may be enjoyed by other Canadian citizens”, they are made in exchange for “the privileges conferred on lawyers as members of an ‘exclusive profession’” (paras. 109-10). On July 24, 2006, based on what it found to be the seriousness of Mr. Doré’s conduct and on his failure to show remorse, the same panel suspended Mr. Doré’s ability to practise law for 21 days (2006 CanLII 53436).
[18] Mr. Doré appealed the Disciplinary Council’s decisions to the Tribunal des professions on several grounds (2007 QCTP 152 (CanLII)). This time, he did not challenge the constitutionality of art. 2.03. Instead, he argued that the manner in which the relevant legislation was applied by the Disciplinary Council was unconstitutional because his comments were protected by s. 2 (b) of the Charter .
[19] The Tribunal reviewed the constitutionality of the Disciplinary Council’s decision on a standard of correctness, but said that a full Oakes analysis under s. 1 of the Charter was inappropriate where a decision only applied to one person. Instead, it held that “[t]he issue becomes one of proportionality or, more specifically, minimal limitation of the guaranteed right” (para. 69, citing Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256, at para. 155). In the circumstances, the Disciplinary Council’s decision to sanction Mr. Doré was found to be a [translation] “minimal restriction on freedom of expression” (para. 76). It rejected Mr. Doré’s argument that Justice Boilard’s disparaging remarks justified his letter. It also rejected his argument that the letter was private, since Mr. Doré remained “an officer of the court and a lawyer” (para. 77) and had exceeded the objectivity, moderation and dignity expected of him. Though it noted that the sanction imposed by the Disciplinary Council “seems harsh” (para. 135), the Tribunal held that it was not unreasonable, given the gravity of Mr. Doré’s conduct and his lack of remorse.
[20] On judicial review, the Superior Court of Quebec upheld the decision of the Tribunal, including its view that the letter did not constitute a private act, and found the Tribunal’s reasoning to be [translation] “unassailable” (2008 QCCS 2450 (CanLII), at paras. 105, 109, 139 and 147). It concluded that by finding the decision to be a minimal restriction on Mr. Doré’s freedom of expression, the Tribunal had “implicitly” held that the restriction was “justified in a free and democratic society” (para. 104).
[21] The Quebec Court of Appeal held that given the status and role of the parties, Mr. Doré could not reasonably have expected his letter to remain confidential or private. It acknowledged that the Disciplinary Council’s decision was a breach of s. 2 (b), but, applying a full s. 1 analysis, it found that Mr. Doré’s letter had [translation] “limited importance . . . compared to the values underlying freedom of expression, which are the pursuit of truth, participation in the community, individual self-fulfillment, and human flourishing” (para. 36). The court held that protecting the public was an important objective, and that the Disciplinary Council’s decision had a rational connection with that objective, especially given the importance of a judge’s position in the judicial system. On minimal impairment, assessing both the decision and the sanction, the Court of Appeal held that while the sanction was significant, it was targeted at the manner in which Mr. Doré criticized Justice Boilard, and did not prohibit the expression itself:
[translation] The impugned decision appears to be measured and, in the present case, is a correct application of section 2.03 of the Code of ethics. The sanction is significant (suspension of the right to practice for twenty-one days). It also involves the stigma attached to disciplinary guilt. It is not, however, unreasonable. In my view, it is a measured sanction of a lawyer who has been found guilty of a serious ethical offence. [para. 47]
It concluded by finding that the effects of the decision were proportionate to its objectives.
Analysis
[22] Mr. Doré’s argument rests on his assertion that the finding of a breach of the Code of ethics violates the expressive rights protected by s. 2 (b) of the Charter . Because the 21-day suspension had already been served when he was before the Court of Appeal, he did not appeal the penalty. The reasonableness of its length, therefore, is not before us.
[23] It is clear from the decisions of the Tribunal and the reviewing courts in this case that there is some confusion about the appropriate framework to be applied in reviewing administrative decisions for compliance with Charter values. Some courts have used the same s. 1 Oakes analysis used for determining whether a law complies with the Charter ; others have used a classic judicial review approach.
[24] It goes without saying that administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values (see Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710, at para. 71; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at paras. 19-23; and Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at paras. 62-75). The question then is what framework should be used to scrutinize how those values were applied?
[25] In Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, Lamer J., in his concurring reasons, said that the Charter applied to a labour adjudicator’s decision and used the s. 1 framework developed in R. v. Oakes, [1986] 1 S.C.R. 103, to determine if the decision complied with the Charter . Writing for the majority, Dickson C.J. agreed with Lamer J. that the Charter applied to administrative decision-making. But while he applied the Oakes framework, he notably and presciently observed that “[t]he precise relationship between the traditional standard of administrative law review of patent unreasonableness and the new constitutional standard of review will be worked out in future cases” (p. 1049 (emphasis added)).
[26] Yet the approach taken in Slaight can only be properly understood in its context. Importantly, when Lamer J. held that discretionary administrative decisions implicating Charter values should be reviewed under the Oakes analysis, he did so in the context of the perceived inability of administrative law to deal with Charter infringements in the exercise of discretion. This concern permeates the reasons in Slaight. As Prof. Geneviève Cartier has noted:
. . . while Lamer J thought the administrative law standard was ill-suited to Charter challenges because of its inability to inquire into the substance of discretionary decisions, Dickson CJ thought it was ill-suited because of its inability to properly unravel the value inquiries involved in any Charter litigation.
(“The Baker Effect: A New Interface Between the Canadian Charter of Rights and Freedoms and Administrative Law — The Case of Discretion”, in David Dyzenhaus, ed., The Unity of Public Law (2004), 61, at p. 68)
[27] The approach taken in Slaight attracted academic concern from administrative law scholars. Prof. John Evans argued that if courts were too quick to bypass administrative law in favour of the Charter , “a rich source of thought and experience about law and government will be overlooked or lost altogether” (“The Principles of Fundamental Justice: The Constitution and the Common Law” (1991), 29 Osgoode Hall L.J. 51, at p. 73). Similarly, Prof. Cartier suggested that the Slaight approach reduced the role of administrativ