The Supreme Court of Canada upheld the reprimand of a lawyer who had written an inflammatory letter to a judge, despite the acknowledged limitation such a sanction placed on his expressive rights under the Charter.

Administrative law – Decisions of administrative tribunals – Law Societies – Barristers and solicitors – Disciplinary proceedings – Professional misconduct – Human rights complaints – Charter of Rights and Freedoms – Freedom of expression – Validity of legislation – Judicial review – Jurisdiction – Standard of review –  Reasonableness simpliciter –  Correctness

Doré v. Barreau du Québec, [2012] S.C.J. No. 12, Supreme Court of Canada, March 22, 2012, McLachlin C.J. and Binnie, LeBel, Fish, Abella, Rothstein and Cromwell JJ.

A lawyer (“Dore”) was reprimanded by the Barreau after he wrote an inflammatory private letter to a judge who had criticized him in reasons for judgment given in a criminal case where Dore was counsel. Dore brought a constitutional challenge to the decision of the Barreau to discipline him, claiming it violated his s.2 freedom of expression rights under the Canadian Charter of Rights and Freedoms (“Charter”). The Court held that the discipline committee’s decision to reprimand Dore reflected a proportionate balancing between his expressive rights and the public mandate to ensure that lawyers behave with “objectivity, moderation and dignity”. The question before the Court was how Charter guarantees and values could be protected in the context of adjudicated administrative law decisions.

Dore was counsel for an accused in criminal proceedings before Boilard J. of the Superior Court of Quebec. In written reasons rejecting Dores application for a stay, Boilard J. accused him of “bombastic rhetoric and hyperbole” and said that the court must “put aside” Mr. Doré’s “impudence”. Justice Boilard called the request for a stay “totally ridiculous.” (para. 9)

Upset by these comments, Dore wrote a private letter to Justice Boilard, stating, in part,

…

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. (para. 10)

Dore lodged a complaint about Justice Boilard’s conduct with the Canadian Judicial Council. In the same time frame, the Chief Justice, who had received a copy of Dore’s letter from Justice Boilard, sent a copy of it to the Syndic du Barreau (“Barreau”), the regulatory body for Quebec lawyers. This precipitated a complaint that Dore had violated the Code of ethics of advocates, art. 2.03, in that he did not conduct himself with “…objectivity, moderation and dignity.” (para. 13)

The Canadian Judicial Council concluded that Justice Boilard had used unnecessary derogatory remarks in the reasons for judgement, and reprimanded him.

Disciplinary proceedings at the Barreau resulted in the Disciplinary Council finding Dore had misconducted himself. Although Code article 2.03 infringed Dore’s freedom of expression, the limitation was reasonable because the Canadian legal system requires that lawyers and judges work together in the interest of justice. Dore had joined the profession voluntarily. Dore was suspended from practice for 21 days and reprimanded.

Dore appealed to the Tribunal des Professions. He did not raise the issue of the constitutionality of article 2.03, but argued that the way in which the legislation was applied was unconstitutional due to s.2(b) of the Charter. The Tribunal reviewed the constitutionality of the decision on a correctness standard, but did not proceed through an Oakes analysis, saying it was inappropriate since the decision only applied to one individual. The Tribunal held that the sanction against Dore, while seeming harsh, was not unreasonable in the circumstances.

Superior Court of Quebec

The Superior Court of Quebec upheld the Tribunal’s decision. The Tribunal’s finding that the decision was a minimal restriction on Dore’s freedom of expression implied that the restriction was justified in a free and democratic society.

Quebec Court of Appeal

The Quebec Court of Appeal agreed with the Tribunal that the letter from Dore could not have been expected to remain confidential or private. While the Disciplinary Council’s decision breached Charter s.2 (b), a s.1 analysis demonstrated that Dore’s letter was of limited importance when weighed against the values underlying freedom of expression. The sanction and the effect of the Disciplinary Council’s decision were found to be proportionate to its objectives.

Supreme Court of Canada

The Supreme Court of Canada held that the traditional Oakes s.1 analysis is not applicable. However, the principles of balance and proportionality, contained in the Oakes test should be incorporated into the administrative law approach to ensure strong Charter protection. When considering whether an adjudicated administrative decision violates the Charter, the court should consider whether the decision-maker has disproportionately and therefore unreasonably limited a Charter right. Reasonableness in the Charter context must centre on proportionality. The decision of an administrative body must interfere with the relevant Charter guarantee no more than necessary given the objective of the statute. “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.” (para. 7)

The reasonableness of the length of the 21-day suspension was no longer an issue, as Dore did not appeal the penalty and had served it already.

“As explained by Chief Justice McLachlin in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, the approach used when reviewing the constitutionality of a law should be distinguished from the approach used for reviewing an administrative decision that is said to violate the rights of a particular individual (see also Bernatchez). When Charter values are applied to an individual administrative decision, they are being applied in relation to a particular set of facts. Dunsmuir tells us this should attract deference (para. 53; see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 39). When a particular “law” is being assessed for Charter compliance, on the other hand, we are dealing with principles of general application.” (para. 36)

Where a discretionary administrative decision is made, reasonableness is the appropriate standard of review. Where a Charter issue is involved, there is no requirement to supplement the administrative law approach with the Oakes test to see if an adjudicated administrative decision’s violation of the Charter is a reasonable limit under s.1.

When a tribunal is determining the constitutionality of a law, the standard of review is correctness. However, correctness should not be used to determine whether an administrative decision-maker has taken sufficient account of Charter values in making a discretionary decision.

An administrative decision-maker exercising a discretionary power under their statute has familiarity with the competing considerations at play in weighing Charter values. Using a reasonableness standard is therefore appropriate. Were the courts required to apply a correctness review in every case implicating Charter values, administrative decisions would be retried where they would otherwise be subjected to a reasonableness standard.

The analysis should incorporate a proportionality exercise requiring the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives. On judicial review, the question is 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.” (para. 57)

Civility is required of legal counsel. However, assessing the boundaries of civility in this case requires Dore’s conduct to be interpreted in light of his expressive rights under the Charter. There is an acknowledged public benefit in ensuring that lawyers can express themselves about the justice system and even about judges in particular, since it promotes accountability.

The conclusion that a reprimand of Dore was warranted was reasonable, even though a reprimand for a lawyer does not automatically follow from criticizing a judge. While Dore’s displeasure with Justice Boilard was justifiable, his manner of expressing that displeasure was improper. The vituperative tone of the letter, the choice of words and the overall context demonstrate that the decision to reprimand him was not unreasonable given the statutory objectives. The appeal was dismissed with costs.

To stay current with the new case law and emerging legal issues in this area, subscribe here.