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Introduction

A. The Question: Can the Legislature Use Section 33 to Ensure that Administrative Decisions, as Distinct from Legislation, Survive Notwithstanding Sections 2 or 7 to 15 of the Charter?

THE very existence of section 33 in the Canadian Charter of Rights and Freedoms has been controversial since the Charter was enacted in 1982.[1] The provision permits the legislature to enact legislation that operates notwithstanding sections 2 or 7 to 15 of the Charter, provisions which guarantee fundamental rights. For critics, section 33 inappropriately permits the legislature to “override” fundamental rights or to preclude the judicial review of legislation on the grounds that the legislation is inconsistent with the relevant Charter provisions.[2] For defenders, section 33 appropriately permits the legislature to assert the primacy of its view of whether legislation is consistent with the relevant Charter provisions over the judiciary’s view.[3]

More recently, increasing use of section 33 has prompted discussion in the courts and the scholarship on the extent to which the legislature’s use of section 33 immunizes (or insulates) legislation from judicial review on the grounds of inconsistency with the relevant Charter provisions.[4] But as a legal matter, it is clear that, for better or for worse, the legislature can use section 33 to ensure that legislation operates notwithstanding the relevant Charter provisions.[5]

In this article, I am interested in a different but closely related question: Can the legislature use section 33 to ensure that administrative decisions made under legislation survive notwithstanding those same provisions?

To avoid begging important questions, I will say that a decision “survives” in just the way that legislation “operates.”[6] It is clear that ensuring that legislation operates means, at minimum, that a court cannot strike down the legislation, so it is clear that doing so precludes judicial review to at least some extent. However, there is debate over the exact extent to which this may be the case, specifically whether it may preclude judicial review entirely.[7] That is, there is a debate over the scope of the section 33 immunity. Some suggest that a reviewing court can still issue remedies other than striking down the legislation, such as declarations, while others suggest that the court cannot issue any remedies at all.

B. The Significance of the Question

The question of whether the legislature can use section 33 to ensure that administrative decisions made under legislation survive notwithstanding the relevant Charter provisions has received little attention, in part because section 33 has historically only been used rarely. The federal Parliament has never used it, and although the Quebec legislature initially used it extensively, provinces outside Quebec have used it sparingly.[8]

More recently, however, the Quebec legislature has started using section 33 again, and the Ontario legislature has used or threatened to use the provision three times over the last few years (with two actual uses). The Saskatchewan legislature used it in 2023.[9]

In 2022, both the Quebec and Ontario legislatures used it, once each. Quebec’s An Act respecting French, the official and common language of Québec used section 33 to ensure the exclusive use of French in a wide variety of situations, with section 114 of that Act providing for warrantless search and seizure to enforce the legislation.[10]

The second-most recent use, in Ontario’s Keeping Students in Class Act, 2022 (Bill 28, now repealed), is notable because it directly raises the question I am interested in here.[11] Not only did that Act use section 33 so that it would operate notwithstanding sections 2, 7, and 15 of the Charter, but it also purported to preclude any “cause of action or other legal basis for a proceeding” against the Crown for “anything done or not done in order to comply with this Act or the regulations made under this Act.”[12] Thus, the Act purported to ensure that non-legislative, administrative decisions would survive notwithstanding sections 2, 7, and 15 of the Charter.

In 2023, the Saskatchewan legislature used section 33 in The Education (Parents’ Bill of Rights) Amendment Act to prevent teachers from using the gender-related preferred name or gender identity of a student under sixteen years old without parental consent.[13] Like the Ontario legislation, this Saskatchewan legislation not only used section 33 so that the legislation would operate notwithstanding sections 2, 7, and 15 of the Charter, but also purported to preclude any “action or proceeding based on any claim for loss or damage resulting from the enactment or implementation of this section or of a regulation or policy related to this section” against the Crown.[14] Saskatchewan’s 2023 legislation suggests that Ontario’s 2022 legislation was not anomalous, but an illustration of how legislatures can and increasingly do use section 33.

The increasingly frequent use of section 33 shows that the distinctively administrative law—as opposed to purely constitutional law—question of whether the legislature can use section 33 in the context of administrative decisions, and if so, how, has become a live one. As I will explain, the question is also tied to the evolving framework for assessing whether administrative decisions comply with the Charter. Yet, there has been no direct and sustained attempt to answer this question.[15]

The question is not only practically significant but also raises broader and deeper questions about the roles of the legislature and of the judiciary in determining the role of the Charter in constitutional and administrative law. While the discussion on section 33 has understandably focused on the extent to which courts can review uses of section 33 in the context of legislation, the extent to which courts can review uses of section 33 in the context of non-legislative, administrative decisions is just as significant.

Legislation has limited practical effect without implementation via decisions which are themselves non-legislative, but made under, or purportedly made under, legislation. It is through this delegated decision-making by administrative actors that the legislature gives effect to legislation. Thus, the impact of legislation on Canadians, including any infringement of their rights, derives from not only the legislation itself but also—and even especially—administrative decisions made under, or purportedly made under, such legislation.

Even if legislation itself is constitutional, decisions purportedly made under it might not be, in which case Canadians might experience an infringement of their Charter rights all the same. The potential for administrative decisions themselves to impact Charter rights means that we must think carefully about what, if anything, a reviewing court can do when the legislature tries to use section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter provisions.

The Supreme Court of Canada’s decisions in Little Sisters Book and Art Emporium v. Canada (Minister of Justice) and Canada (Attorney General) v. PHS Community Services Society illustrate how Charter-infringing decisions can be made under, or purportedly made under, Charter-compliant legislation.[16]

In Little Sisters, the Court held that even though customs legislation was itself constitutional, the administrative implementation of the legislation unjustifiably limited the claimants’ section 15 rights to equality.[17] Customs officials targeted importers of obscene materials despite the absence of any evidence suggesting that gay and lesbian erotica was more likely to be obscene than heterosexual erotica or that the importers were more likely offenders in this regard, the consequence of which was excessive and unnecessary prejudice to the importers.[18] In Little Sisters, the non-legislative decision—that is, the administrative implementation of the legislation—may have purported to be, but was not in fact, authorized by the customs legislation, which did not authorize or purport to authorize such decisions.[19]

Similarly, in Insite, the Court held that even though certain criminal legislative prohibitions on possession and trafficking controlled substances were constitutional, the minister of health’s failure to grant an exemption (which the legislation provided for at the minister’s discretion) to a supervised injection site unjustifiably limited the claimants’ section 7 rights.[20] The minister’s decision prevented injection drug users from accessing health services, threatening their health and lives in a way that contravened the principles of fundamental justice against arbitrariness and gross disproportionality.[21] Although the Court did not explicitly say so, we can infer from the Court’s reasoning that the minister’s failure to grant an exemption under the legislation was not authorized by legislation.[22]

What about a case just like Little Sisters or Insite, except that by using section 33, the legislature authorizes—or purports to authorize—administrative decisions made under legislation that might be inconsistent with sections 2 or 7 to 15 of the Charter? Can the legislature really authorize such decisions by using section 33 to extend immunity from Charter challenges based on those provisions to administrative decisions made under such legislation?[23] If so, to what extent are the administrative decisions immune from judicial review on the grounds of inconsistency with the relevant sections of the Charter?

C. My Answer to the Question

I will argue that the legislature can, in principle, use section 33 in legislation to authorize administrative decisions that might be inconsistent with sections 2 or 7 to 15 of the Charter. Specifically, it can do so by extending the immunity that legislation it enacts may have from Charter challenges based on those provisions to administrative decisions made under such legislation.

But this does not itself resolve to what extent such administrative decisions are immune from judicial review on the grounds of inconsistency with the Charter’s relevant sections. Resolving this requires addressing a complication introduced by the Supreme Court’s framework in Doré v. Barreau du Québec,[24] after its decisions in Little Sisters and Insite, for assessing the compliance of administrative decisions with the Charter. According to that framework, an administrative decision implicating the Charter must reasonably balance statutory objectives with the relevant Charter protections—that is, Charter rights and values. For some time, it was unclear what that framework involves, and to what extent it survives the current framework from the Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov for selecting and applying the standard of review for the substantive review of administrative decisions.[25]

The Court has recently clarified the Doré framework.[26] Consistent with that clarification, I suggest distinguishing between two general and mutually compatible approaches to assessing the compliance of administrative decisions with the Charter, one based on Charter rights and the other based on Charter values. On the Charter rights approach, I suggest that various views on the operation of section 33 in the context of legislation correspond to analogous views on the operation of section 33 in the context of non-legislative, administrative decisions. Just as one might hold that using section 33 entirely precludes the judicial review of legislation, one might similarly hold that section 33 entirely precludes the judicial review of administrative decisions. Alternatively, just as one might hold that using section 33 permits the judicial review of legislation but permits only remedies other than striking down the legislation, one might similarly hold that section 33 permits the judicial review of administrative decisions but permits only remedies other than quashing the administrative decision. However, on the Charter values approach, section 33 cannot immunize administrative decisions from judicial review on the grounds of inconsistency with the relevant sections of the Charter.

I will proceed as follows. In Part II, I explain how section 33 works and how it has been understood to work in the context of legislation. I set out the consensus that using section 33 in the context of legislation at least prevents a court from striking down the legislation, although there is currently a lively debate over the extent to which using section 33 precludes judicial review. The maximalist view is that section 33 precludes judicial review based on the relevant Charter provisions altogether, while the minimalist view is that section 33 still permits judicial review based on those provisions with a more limited range of remedies. In Part III, I illustrate how Bill 28 raises the question of whether the legislature can use section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter provisions. In Part IV, I argue that the principle that the legislature can authorize another entity to do whatever the legislature can itself do suggests that the legislature can use section 33 to authorize an administrative decision-maker to make decisions that would otherwise unconstitutionally limit the relevant Charter protections. Thus, the legislature can in principle use section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter provisions. In Part V, I examine whether the legislature can in fact use section 33 in this way, and if so, how. Given the evolving framework for assessing whether administrative decisions comply with the Charter, I distinguish between two general approaches—one based on Charter rights and the other based on Charter values—and explain the effect of using section 33 in the context of administrative decisions under each approach. On the Charter rights approach, using section 33 has effects that are analogous to the effects of using section 33 in the context of legislation; at the least, it prevents a court from quashing the decision. On the Charter values approach, however, using section 33 has no effect, since using section 33 has no effect on Charter values or their enforcement.

I. Section 33 OF THE CHARTER

A. Section 33 Prevents a Court from Striking Down the Legislation

In full, section 33 of the Charter reads as follows:[27]

Exception where express declaration

33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Operation of exception

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

Five year limitation

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

Re-enactment

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

Five year limitation

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

Although section 33 does not specifically refer to striking down or any other remedy, it is clear that a section 33 declaration in legislation prevents a court from striking it down.[28] Insofar as related remedies such as reading down, severance, and reading in are simply variations of striking down, it is similarly clear that a section 33 declaration in legislation also prevents a court from issuing these related remedies. For simplicity, I will refer just to striking down on the understanding that such reference includes reference to these related remedies.

B. Debates Involving Section 33

Beyond this modicum of agreement, there is much debate involving section 33, only part of which is relevant to this article. One major debate is over the political or moral merits of using section 33.[29] I have nothing to say about this debate, since my focus is on the distinctively legal debate.[30] A related but distinct debate, which is more relevant here, is over the extent to which a court can review the legislature’s use of section 33. That debate was in part addressed by the only case in which the Supreme Court has specifically considered the use of section 33—namely, Ford v. Quebec (Attorney General).

In Ford, the Quebec legislature used section 33 in legislation requiring that public signs and posters and commercial advertising be solely in French, and that only the French version of a firm name be used. The Court held that section 33 “lays down requirements of form only, and there is no warrant for importing into it grounds for substantive review of the legislative policy in exercising the override authority in a particular case.”[31] Section 33 can be used “to override more than one provision of the Charter and indeed all of the provisions which it is permitted to override by the terms of s. 33.”[32] Thus, the “standard override provision” in the case—which said that “[t]his Act shall operate notwithstanding the provisions of sections 2 and 7 to 15” of the Charter—was “a valid exercise of the authority conferred by s. 33 in so far as it purport[ed] to override all of the provisions in s. 2 and ss. 7 to 15 of the Charter.”[33] However, the Court added that the override provision can only have prospective and not “retroactive” or “retrospective” effect.[34] In short, the Court in Ford established that a court can engage in extremely limited review of the legislature’s use of section 33 in legislation. If the legislature uses the appropriate language, it can ensure that its legislation will operate notwithstanding one or more of sections 2 and 7 to 15 of the Charter.[35]

C. The Maximalist and Minimalist Views

The relatively more frequent use by the provinces of section 33 in recent years has led courts and scholars to pay its use increasing attention. Litigants in cases like Hak c. Procureure générale du Québec (on Quebec’s 2019 religious symbols law, which used section 33) and Working Families Coalition (Canada) Inc v. Ontario (Attorney General) (on Ontario’s elections law, which also used section 33) have urged courts to subject uses of section 33 to more substantive review, as opposed to the largely formal review contemplated in Ford.[36] In addition to these developments in litigation, scholars have recently debated the precise effects of a section 33 declaration; specifically, what is the extent to which such use precludes judicial review of the legislation? The debate focuses on whether using section 33 in legislation entirely precludes a court from reviewing the legislation for consistency with the relevant Charter provisions and, if not, what remedies other than striking down the legislation are available to the court.

In this debate, we can distinguish between two views: the maximalist view, which holds that using section 33 in legislation completely immunizes the legislation from judicial review, and the minimalist view, which holds that using section 33 in legislation only partly immunizes the legislation from judicial review and continues to make available remedies other than striking down to the court. Although the debate might seem arcane or technical, it is practically significant because each view has different implications for whether a reviewing court can act in response to section 33-immunized legislation. If the minimalist view is correct, then a reviewing court can still issue remedies other than striking down and may even issue a striking down that is deferred but takes effect once the section 33 declaration expires. By contrast, if the maximalist view is correct, then a reviewing court cannot do so—at least while the section 33 declaration remains in effect. With the practical significance of the debate in mind, let me elaborate on both views.

From the maximalist view, there can be no judicial review; at least, not based on inconsistency with the relevant Charter provisions. The maximalist view might seem to be what Ford held, and the purpose and text of section 33 may seem to support it. Recently, Geoffrey Sigalet has endorsed this maximalist view in response to others’ claims (which I examine below) that there can still be a more limited form of judicial review.[37] In his view, “section 33 prohibits substantive judicial review. ... Practically speaking, this means that courts may not hold laws properly invoking the notwithstanding clause to be inconsistent with selected Charter provisions, nor can they declare laws to violate Charter rights.”[38] Similarly, Maxime St-Hilaire, Xavier Foccroulle Menard, and Antoine Dutrisac write that section 33 “suspends targeted rights-guaranteeing provisions of the Charter, rendering them inapplicable to protected legislation. Under these circumstances, for the times s. 33 is temporarily invoked, there cannot be any judicial review of the protected legislation in relation to these inapplicable provisions, and as a consequence, there cannot be any remedy for a non-existent Charter rights violation, be it a ‘mere’ declaration of ‘inconsistency.’”[39]

By contrast, from the minimalist view, there can still be judicial review based on inconsistency with the relevant Charter provisions, but the court can only issue remedies other than striking down the legislation. Grégoire Webber develops one version of this view, according to which a court can conclude that the legislation is inconsistent with the relevant Charter provisions and further conclude that the legislation is invalid, but cannot finally conclude that the legislation is inoperable.[40] Although the court cannot remedy the invalidity by making the legislation inoperable, according to Webber, the court can still declare the legislation to be invalid.[41] Robert Leckey and Eric Mendelsohn develop another version of the minimalist view, according to which a court can conclude that legislation unjustifiably infringes a fundamental right or freedom but cannot further conclude that the legislation is inconsistent with the Constitution.[42] Although the court cannot remedy the rights violation by striking down the legislation, the court can still declare the legislation to have violated rights and potentially issue a subsection 24(1) remedy, including damages.[43]

My interest here is not to adjudicate between the minimalist and maximalist views, or versions of those views, on the use of section 33 in the context of legislation. Nonetheless, as I will explain, each of those views suggest corresponding views on the use of section 33 in the context of administrative decisions made under legislation. Accordingly, they shed light on the question that I am interested in answering, which I turn to now: Can the legislature use section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter provisions?

D. The Question That Ontario’s Bill 28 Raises

The question that I seek to address in this article is raised in Ontario’s Keeping Students in Class Act, 2022 (Bill 28, now repealed). During a labour dispute in November 2022 between Ontario and school board employees represented by the Canadian Union of Public Employees, Ontario passed the bill to impose new collective agreements, require the termination of any strike or lockout, and prohibit strikes or lockouts during the term of the collective agreement.[44] Notably, Bill 28 was declared to operate notwithstanding sections 2, 7 and 15 of the Charter, and provided that there were to be no causes of action or proceedings—including judicial review—against the Crown for certain acts.[45]

Subsection 13(1) of Bill 28 made a declaration under subsection 33(1) of the Charter that it was to operate notwithstanding the relevant sections of the Charter.[46] That was a standard use of section 33. More interestingly, for the purposes of this article, subsection 13(3) of Bill 28 suggested that the use of section 33 in the context of legislation may have some application in the context of non-legislative decisions as well: “For greater certainty,” subsection (1) applies to “regulations made under [the] Act.”[47] Since regulations made under Bill 28 are by the lieutenant governor in council (section 16), they are not legislation in the strict sense but are rather administrative decisions, even if they have a quasi-legislative dimension to them.[48]

Further, subsection 15(1) of Bill 28 suggested that there could be “no legal basis for a proceeding” against the Crown or any administrative decision-maker implementing Bill 28. Subsection 15(3) suggested broad application to “any court, arbitral or administrative proceeding, including any application, claim or complaint, claiming any remedy or relief.” Subsection 15(4) suggested that “[f]or greater certainty, subsection (3) applies to any proceedings, including any application, claim or complaint, claiming damages or any other remedy” under subsection 24(1) of the Charter or subsection 52(1) of the Constitution Act, 1982 “for any purported infringement of section 2, 7 or 15” of the Charter. Subsection 15(5) suggested that “[f]or greater certainty, subsections (1) to (3) do not preclude an application for judicial review, but no remedy shall be granted in an application for judicial review with respect to any purported infringement referred to in subsection (4).”[49]

Thus, sections 13 and 15 of Bill 28 together expressed an intention by the legislature to use section 33 of the Charter to ensure not only that Bill 28 itself would operate notwithstanding the relevant Charter sections, but also that any administrative implementation of Bill 28 would survive notwithstanding those provisions.[50] In other words, the legislature was at least purporting to use Bill 28 to authorize administrative decisions made under it that might be inconsistent with sections the Charter. But can the legislature really authorize such decisions by using section 33 to extend immunity from Charter challenges based on those provisions to administrative decisions made under such legislation? If the legislature can really authorize such decisions, and not merely purport to do so, to what extent are the administrative decisions immune from judicial review on the grounds of inconsistency with sections 2 and 7 to 15 of the Charter?

II. Section 33 Can in Principle be Used to Ensure Administrative Decisions Survive Notwith-standing sections 2 and 7 to 15 of the Charter

A. The Delegation Argument

I suggest that the legislature can in principle use section 33 of the Charter to ensure that administrative decisions survive notwithstanding sections 2 and 7 to 15 of the Charter. The main rationale is based on the legislature’s unquestionable ability to delegate its authority.[51]

In administrative law, it is well established that a legislature which cannot itself do something constitutionally cannot authorize another entity to do the same thing.[52] Thus, where the legislature cannot itself make a decision that would be unconstitutional, an administrative decision-maker acting under legislative authority cannot make the same decision. The converse principle is that a legislature which can itself do something constitutionally can authorize another entity to do the same thing.[53] Thus, where the legislature can itself make a decision that would be constitutional, an administrative decision-maker acting under legislative authority can make the same decision.[54] In both cases, the general principle is that whatever the legislature can or cannot do, constitutionally speaking, it accordingly can or cannot delegate.[55]

Applying this general principle and, in particular, the converse principle to the situation at hand, suggests that since the legislature can itself make (legislative) decisions that operate notwithstanding the relevant sections of the Charter, it can authorize an administrative decision-maker to make (non-legislative) decisions that survive notwithstanding those Charter provisions. That is, the legislature can delegate its authority to make decisions notwithstanding those Charter provisions to administrative decision-makers.

In my view, this delegation argument provides the basis for the legislature to use section 33 to immunize administrative decisions, even though the extent to which the legislature can delegate its authority is a complex issue. I wish to acknowledge this complexity. One might think of section 33 as a provision that limits the legislature’s ability to act rather than a provision that empowers the legislature to do something—so perhaps we should emphasize that section 33 is about constraining rather than empowering the legislature. Still, a plausible reading of section 33 is that it authorizes the legislature to act notwithstanding the relevant Charter provisions.[56] In this context, there is nothing problematic about conceiving of section 33 as I am suggesting, where the provision empowers the legislature to act in certain ways subject to constitutional limits, including those specified in section 33 itself, such as that a section 33 declaration expires after five years. The five-year expiration period corresponds to the maximum duration of legislative bodies, which is also five years (under section 4 of the Charter), so it is reasonable to infer that a use of section 33 is meant to be supported by democratic legitimacy.[57] But even if democratic legitimacy properly constrains the use of section 33, it does not follow that administrative decisions cannot receive immunity under section 33. The whole point of the delegation argument is that it is the legislature—which has democratic legitimacy, if anything or anyone does—that delegates its authority to make decisions notwithstanding the relevant Charter provisions to administrative decision-makers. It is always the legislature and not an administrative decision-maker that uses section 33.

B. Supporting Considerations

A supporting consideration for the conclusion that the legislature can in principle use section 33 to immunize administrative decisions is the purpose of section 33. While the Supreme Court has not ascertained the purpose of section 33 in the way that it has done so when interpreting other Charter provisions, we should plausibly understand section 33 given its purpose—and the history behind section 33 sheds light on this purpose.

Section 33 was included in the Charter in part as a compromise so that provinces seeking to maintain legislative supremacy and to avoid transferring power from elected officials to the judiciary could have the last word on the scope of certain rights and freedoms.[58] There is suggestion that the Charter would not have been possible in the first place without the inclusion of section 33.[59] This history suggests that the purpose of section 33 is to ensure that the legislature has the last word on the scope of the rights in the relevant sections of the Charter. Assuming, as is plausible, this (or something like it) is the purpose of section 33, there is no principled reason why the legislature’s ability to use section 33 to permit legislation to operate notwithstanding the relevant Charter provisions does not extend to its ability to use section 33 to permit non-legislative, administrative decisions to survive notwithstanding those provisions. On the contrary, it appears that the purpose of section 33 requires that the legislature be able to use section 33 in this way.

Another supporting consideration is the text of section 33. This might seem surprising, since the text of section 33 seems focused on legislation. Subsection 33(1) refers to a declaration in an “Act of Parliament or of the legislature” and “the Act or a provision thereof.” Subsection 33(2) similarly refers to “[a]n Act or a provision of an Act in respect of which a declaration made under this section is in effect.”[60] So, a narrow reading of section 33 might suggest that the provision concerns legislation and nothing more. But, in my view, such a narrow meaning seems implausible and fails to give effect to the clear direction that legislation “operate notwithstanding” and “have such operation as it would have but for” the relevant Charter provisions.[61] The mere existence of legislation means little without operation or enforcement, which in practice occurs through administrative implementation. So, to give proper effect to the words “operate notwithstanding” and “have such operation but for” the relevant Charter provisions, any plausible interpretation of section 33 would seem to require extending at least part of the legislature’s immunity in its legislative decision-making to administrative decision-makers, so that they too have some level of immunity in decision-making.

C. Countervailing Considerations

To be sure, the above supporting considerations involving the purpose and text of section 33 are just that—considerations—and are not decisive. The contrary conclusion, namely that the legislature cannot use section 33 to ensure that administrative decisions survive notwithstanding those Charter provisions, finds support in several, related countervailing considerations. However, these considerations do not detract from my conclusion that the legislature can in principle use section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter sections.

First, perhaps insofar as section 33 itself is a regrettable part of Canada’s constitution, courts may or even must refuse to give effect to the legislature’s attempt to use section 33 to immunize administrative decisions; even if courts must give effect to the legislature’s use of section 33 to immunize legislative decisions from Charter scrutiny because the text leaves no room to do otherwise, courts may or must refuse to give effect to the legislature’s attempt to use section 33 to protect administrative decisions because the text is ambiguous enough. However, this countervailing consideration assumes that section 33 itself is indeed a regrettable part of Canada’s constitution, even though it is unclear whether courts can properly proceed on that basis while staying within their judicial role. The courts are typically confined to assessing the lawfulness but not the wisdom of the law that they are tasked with interpreting and applying.[62]

Second, the text of Canada’s constitution could be—but has not been—drafted to explicitly permit the legislature to immunize administrative decisions implementing immunized legislation from Charter scrutiny.[63] This countervailing consideration correctly notes that the text of section 33 could be drafted to explicitly permit the legislature to immunize administrative, as well as legislative, decisions from Charter scrutiny. But the absence of explicit permission is not determinative. As I have suggested, a plausible interpretation of the text would seem to require extending at least part of the legislature’s immunity in its legislative decision-making to administrative decision-makers.

Third, just as Canadian tort law recognizes a distinction between “core policy” decisions that are shielded from negligence liability and “operational” decisions implementing policies that are not so shielded, so it might be that even if legislative decisions are immune from Charter scrutiny, administrative decisions implementing immunized legislative decisions are not so immune.[64] However, this countervailing consideration tries to import a distinction from tort law into administrative law, even though that distinction has been problematically unclear and it is questionable whether administrative law could or should adopt an analogous one.[65] Modern administrative law focuses on the substance of decisions and would seem to resist making judicial review depend on whether a decision is classified as “policy” or “operational”—a classification that has been notoriously difficult to make in tort law. Many administrative decisions can plausibly be characterized as both policy decisions and operational decisions. For example, in Insite, the minister’s refusal to grant an exemption to the supervised injection site was a policy decision insofar as the refusal reflected the government’s stance on drug use; and the refusal was also an operational decision insofar as it implemented the government’s policy on drug use.[66]

D. The Objection Based on the Constitutionally Protected Power of Judicial Review Fails

Perhaps the main objection to my suggestion that the legislature can in principle use section 33 to immunize administrative decisions is that the legislature’s doing so invades the judiciary’s constitutionally protected power to review administrative decisions under section 96 of the Constitution Act, 1867.[67] The principle from the foundational case of Crevier v. A.G. (Québec) et al. is that “where a provincial legislature purports to insulate one of its statutory tribunals from any curial review of its adjudicative functions ... [such] provincial legislation must be struck down as unconstitutional.”[68] Chief Justice Laskin held in Crevier that “a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction”—a limitation which he held “stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality.”[69] Crevier continues to stand for the proposition that there is a constitutionally protected right to judicial review, at least on certain questions such as jurisdiction.[70] More recently, Vavilov affirmed that “because judicial review is protected by s. 96 of the Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely.”[71] So, one might reason that an attempt by the legislature to use section 33 to immunize administrative decisions invades the court’s constitutionally protected power to review those decisions.

However, this objection fails: it relies on too broad an understanding of the constitutionally protected power of judicial review, too broad an understanding of the section 33 immunity at stake, or both. No one can reasonably understand section 33 to mean that the legislature can use it to completely immunize legislation from judicial review. Even on the maximalist view of the section 33 immunity in the context of legislation, the claim is only that the immunity precludes judicial review on the grounds of inconsistency with the relevant sections of the Charter.[72] The qualification involving the grounds of review is crucial. There is no suggestion that the immunity precludes judicial review on other grounds, such as other Charter provisions, other constitutional grounds (such as the division of powers) or non-constitutional, purely administrative law grounds (such as common law procedural fairness). Further, although Crevier means that there is a constitutionally protected power of judicial review based on at least some grounds, there is no suggestion that the power is so broad as to permit judicial review based on any ground. There are well established privileges and immunities, such as cabinet immunity, that restrict the scope of judicial review. The situation is similar with administrative decisions. My suggestion is not that the legislature can use section 33 to completely immunize administrative decisions from judicial review, in part since that is not something the legislature can do even with its own legislation, which is subject to judicial review on grounds other than the relevant Charter sections. Rather, my suggestion is only that the legislature can use section 33 to at least partly immunize administrative decisions. In the next Part, I will say more about what I mean by immunity in the context of administrative decisions, but for now I only want to emphasize that the immunity is analogous to the immunity in the context of legislative decisions. The legislature can in principle use section 33 to ensure that administrative decisions made under legislation survive notwithstanding the relevant Charter provisions, just as it can use section 33 to ensure that legislation it enacts operates notwithstanding those provisions.

However, to avoid misunderstanding, I want to clarify what this conclusion does not entail. Nothing I have said detracts from the continued availability of judicial review based on provisions other than sections 2 and 7 to 15 of the Charter. Nor does it detract from the availability of private law claims against public authorities. Thus, even if the legislature uses section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter sections, courts can in principle still consider challenges to those decisions based on other grounds, whether the basis for those claims is from elsewhere in public law or from private law.[73]

III. How Section 33 Can be Used to Ensure Admin- istrative Decisions Survive Notwithstanding sections 2 and 7 to 15 of the Charter

So far, I have argued that the legislature can, in principle, use section 33 of the Charter to ensure that administrative decisions made under legislation survive notwithstanding sections 2 and 7 to 15 of the Charter—but can the legislature, in fact, do so? In this Part, I focus on a complication arising from the evolving framework for assessing whether administrative decisions comply with the Charter.

Before 2012, courts generally assessed all administrative decisions for Charter compliance using the same framework that they used to assess legislation for Charter compliance: the Oakes framework, which is based on a limitation of a Charter right.[74] Courts applying the Oakes framework uphold limits on the Charter as Charter-compliant where (1) there is a pressing and substantial objective and (2) proportionality between societal and individual interests in that (a) the measures are rationally connected to the objective, (b) the means minimally impair the right, and (c) there is proportionality between the effects of the measures and the objective.[75]

But, as I will explain, in 2012, the Supreme Court announced that courts should assess at least some administrative decisions for Charter compliance using a different framework, one based on a limitation of a Charter “protection”—a Charter right or a Charter value. Courts applying the Doré framework uphold limits on the Charter as Charter-compliant where the limit proportionately and reasonably balances Charter protections and statutory objectives.[76]

This new framework gives rise to many issues, but here, I focus on just one: Are Charter rights the same as Charter values, and if not, does the framework involve Charter rights, Charter values, or both?

Given the complication arising from the evolving framework for assessing whether administrative decisions comply with the Charter, in this Part, I distinguish between two general approaches to such an assessment; one based on Charter rights and the other based on Charter values. Although there was initially confusion over the framework, the Court has recently clarified it,[77] consistent with my suggestion to distinguish between these two general approaches.

Distinguishing between these two general approaches is crucial because, as I will explain, the effect of using section 33 of the Charter in the context of administrative decisions depends on the approach to assessing administrative decisions for Charter compliance.[78] On the Charter rights approach, I suggest that using section 33 has effects that are analogous to the effects of using section 33 in the context of legislation; at the least, it prevents a court from quashing the decision. On the Charter values approach, however, I suggest that using section 33 has no effect on Charter values or their enforcement.

A. The Doré Framework

The framework introduced in Doré requires the administrative decision-maker to balance statutory objectives and Charter protections, which are said to be Charter rights and Charter values.

In the 2012 case of Doré, Justice Abella, for the Court, articulated the framework in several—apparently non-equivalent—ways. She started by suggesting that in assessing whether an administrative decision violates the Charter, the court balances whether the “decision-maker disproportionately, and therefore unreasonably, limited a Charter right.”[79] In doing so, she suggested that just as in assessing whether a law violates the Charter, the court is determining “whether there is an appropriate balance between rights and objectives” and the purpose of the exercise is “to ensure that the rights at issue are not unreasonably limited.”[80] Elsewhere in her reasons, she held that on the new framework, as on the Oakes framework, the framework contemplates deferring to decision-makers in “balancing Charter values against broader objectives.”[81] These differently-worded articulations of the framework do not necessarily indicate different frameworks altogether, as perhaps Justice Abella understood Charter “values” to be the same as Charter “rights.”[82] Yet, elsewhere in Doré, Justice Abella discussed “[i]ntegrating Charter values into the administrative approach,” hinting that Charter values might be different from Charter rights.[83] In applying the new framework to the facts, Justice Abella did not apply or even consider the doctrinal test for infringement of freedom of expression, which was the “Charter value at issue” in the case.[84]

Doré attracted significant criticism for many reasons, including its introduction of Charter values into the framework for assessing Charter compliance. In 2014, two years after Doré, many commentators found that it was unclear what Charter values are. Christopher D. Bredt and Ewa Krajewska wrote that “the scope and essence of Charter values are ill defined” and discussed the “nebulous nature of Charter values.”[85] Similarly, Matthew Horner criticized the language in Doré for “caus[ing] considerable confusion among litigants, tribunals and other courts”[86] and suggested rejecting the concept of Charter values, which “create ambiguity when previously there was none”[87] and whose “substantive scope ... is ill defined.”[88] Audrey Macklin argued that the Court’s approach “lack[ed] necessary rigour, clarity and suppleness” and “respect[ed] neither the primacy nor priority of Charter rights and produce[d] instead a Charter-lite approach to discretion.”[89] Even Lorne Sossin and Mark Friedman, who were more sympathetic to Doré, agreed that there was a “lack of precise definition or explanation as to what is or is not a Charter value and why.”[90]

Two later cases from the Court re-articulated the Doré framework. In the 2015 case of Loyola High School v. Quebec (Attorney General), Justice Abella, for the majority, held that “Doré requires administrative decision-makers to proportionately balance the Charter protections—values and rights—at stake in their decisions with the relevant statutory mandate.”[91] The reference to “values and rights” suggested that Charter rights are distinct from Charter values, a suggestion Justice Abella confirmed in explaining that Charter values are “those values that underpin each right and give it meaning.”[92] Presumably, something cannot underpin itself and give itself meaning, so this explanation suggests that Charter rights are distinct from Charter values. In applying the framework to the facts, Justice Abella concluded that the administrative decision in the case engaged religious freedom under the Charter without applying or considering the doctrinal test for infringement of religious freedom.[93]

Then, in the 2018 case of Law Society of British Columbia v. Trinity Western University, a majority (including Justice Abella) held that the Doré framework is concerned with “ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives,” so that “Charter rights are no less robustly protected.”[94] But if “Charter rights are no less robustly protected,” that would seem to suggest that Charter values are virtually identical to Charter rights. Yet the majority did not explain whether that was indeed the case or whether they might still be distinct. It simply reiterated that if “Charter protections — both rights and values” are limited, “the question becomes ‘whether ... the decision reflects a proportionate balancing of the Charter protections at play.’”[95] In applying the framework to the facts, the majority considered and applied the doctrinal test for infringement of religious freedom.[96] Chief Justice McLachlin agreed with the majority that the Doré framework applied but, given commentary on the framework, sought to “address some of the gaps and omissions in the framework” by clarifying that it concerns Charter “rights,” not Charter “values.”[97] Justice Rowe similarly interpreted the framework;[98] Justices Côté and Brown (dissenting) used stronger language. They found that “[t]he majority’s continued reliance on ‘values’ protected by the Charter as equivalent to ‘rights’ is ... troubling.”[99] In their view, Charter values are “unsourced,” “amorphous and ... undefined.”[100]

Despite the Court’s attempts to clarify the Doré framework, what exactly it involves remained unclear for some time.[101] Are Charter rights and Charter values the same, or not? If not, which must be balanced?

Further, a new framework subsequently introduced in the 2019 case of Vavilov for selecting and applying the standard of review left the status of Doré unclear, and the Court in Vavilov expressly declined to address Doré.[102] Still, Vavilov did seem to have implications for Doré.[103] With respect to selecting the standard of review, Vavilov set out a presumption that reasonableness, rather than correctness, is the applicable standard whenever a court reviews administrative decisions.[104] But, according to Vavilov, this presumption can be rebutted either where the legislature has indicated that it intends a different standard or set of standards to apply, or where the rule of law requires that the standard of correctness be applied.[105] With respect to applying the standard of review of reasonableness, Vavilov also clarified its application, emphasizing the need for a culture of justification and robust reasonableness review, which demands responsiveness to the entire context, including legal and factual constraints.[106]

We can distinguish between two views on the status of Doré given Vavilov. One view is that Vavilov casts doubt on and may have even displaced Doré.[107] After all, Vavilov says correctness is the standard of review for constitutional questions involving the division of powers and rights under section 35 of the Constitution Act, 1982 because the rule of law requires a final and determinate answer to such questions.[108] Since Charter questions might seem to be analogous constitutional questions, Vavilov might similarly require a final and determinate answer to Charter questions. If so, an apparently more exacting framework, like the Oakes framework, would seem to be more appropriate than the apparently more deferential Doré framework. An opposing view on the status of Doré—given Vavilov is that far from casting doubt on or displacing Doré—Vavilov actually enhances Doré.[109] After all, Doré calls for robust review based on reasonableness.[110] Vavilov also calls for the same. So, Doré might align well with Vavilov.

The Court’s recent unanimous decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment) has helpfully clarified the proper understanding of the Doré framework, given both lack of clarity over what the framework involves and Vavilov.[111] The case concerned section 23 of the Charter, which grants a defined category of Canadian citizens the right to have their children receive instruction in one of the two official languages where it is the minority language.[112] The issue was whether the refusal to admit children of non-rights holder parents to minority language schools in the Northwest Territories gave due consideration to the protections conferred by section 23.[113] Several non-rights holder parents asked the relevant minister to exercise her discretion to admit their children to a French first language education program, but the minister denied the requests.[114] On judicial review, Justice Côté, for the Court, stated: “It is through the lens of Doré, which governs the judicial review of administrative decisions that engage the Charter, that the Minister’s decisions must be considered. This case is a straightforward application of that precedent.”[115] Importantly, the Court both affirmed Doré and clarified that, under that framework, Charter values are distinct from Charter rights.

First, Justice Côté clarified the distinction between Charter values and Charter rights. She noted that under the Doré framework, “a reviewing court must begin by determining whether the administrative decision at issue ‘engages the Charter by limiting Charter protections — both rights and values.’”[116] But the parties in the case disagreed over whether “the Doré framework applies only in cases where an administrative decision directly infringes a right.”[117] Justice Côté clarified that “the Doré framework applies not only where an administrative decision directly infringes Charter rights but also in cases where it simply engages a value underlying one or more Charter rights, without limiting these rights.”[118] This is “because administrative decision makers have an obligation to consider the values relevant to the exercise of their discretion, in addition to respecting Charter rights,”[119] and there “can be no doubt about this, because ‘[t]he Constitution — both written and unwritten — dictates the limits of all state action.”[120] Relatedly, “a discretionary decision, to be reasonable, must be made in accordance with the ‘fundamental values of Canadian society’ as reflected in the Charter,” so that “discretionary decisions must ‘always’ take Charter values into consideration.”[121]

Second, Justice Côté affirmed Doré, whose status was unclear given Vavilov. The standard of review applicable in reviewing discretionary administrative decisions that limit Charter protections remains reasonableness.[122] Reasonableness under Vavilov requires justification in relation to relevant law and facts, and so it requires an administrative decision-maker to consider the relevant Charter values.[123] Further, in the context of discretionary decisions that engage Charter protections, Doré is the governing framework.[124]

On the facts, Justice Côté concluded that although there was no dispute that the parents’ Charter rights (under section 23) had not been infringed, the minister’s decisions limited the relevant Charter values underlying the right, and so the Doré framework applied.[125] The minister was required to consider the values of preservation and development of minority language communities in exercising her discretion to decide whether to admit children of non-rights holder parents to the schools of the Francophone minority in the Northwest Territories.[126] Refusing to admit those children by prioritizing the government’s interests had the effect of limiting the values of preservation and development of minority language communities, so the minister had to proportionately balance these values with the government’s interests.[127] But the minister failed to truly consider these values, and so her decisions were unreasonable.[128]

B. Two Approaches to the Doré Framework: The Charter Rights Approach and the Charter Values Approach

Consistent with the Supreme Court’s recent decision in CSFTNO, I suggest that we can distinguish between two general approaches to the Doré framework and, more generally, to assessing administrative decisions for compliance with the Charter. One approach is based on Charter rights, and the other approach is based on Charter values.

I assume, as the weight of both authority and reason suggests, that Charter rights are distinct from Charter values.[129] I also assume, as Justice Abella held in Loyola, and as the unanimous Court affirmed in CSFTNO,[130] that Charter values are those values that “underpin each right and give it meaning.”[131] Unlike Charter rights, the limitation of which depends on the application of the doctrinal tests, Charter values underpin and have broader scope than Charter rights. Thus, Charter values can engage the Doré framework even in the absence of any infringement of a right.[132]

On the Charter rights approach, assessing an administrative decision for compliance with the Charter involves balancing statutory objectives and Charter rights. That is the approach in both a section 1 analysis based on the Oakes framework and one of the dominant understandings of the Doré framework. On the Charter values approach, assessing an administrative decision for compliance with the Charter involves balancing statutory objects and Charter values, where Charter values are distinct from Charter rights.

Although I suggest distinguishing between these two approaches to assessing administrative decisions for compliance with the Charter, these two approaches are mutually compatible and can be employed together. Specifically, it could be that the Charter values approach more often applies, while the Charter rights approach applies only where Charter rights are engaged.[133] The idea would be that administrative decision-makers must always balance statutory objectives with (relevant) Charter values, but that they must also add Charter rights into the balance when such rights are limited. Since Charter rights are directly protected by the Charter, whereas Charter values are only indirectly protected by the Charter, Charter rights might attract greater weight in the balancing, with stronger magnetic pull than Charter values. The Court’s recent decision in CSFTNO clarifies that the Doré framework applies when either Charter values or Charter rights are engaged.[134]

C. Significance of Each of the Charter Rights and Charter Values Approaches to the Doré Framework

The Charter rights and the Charter values approaches, I suggest, lead to different conclusions on whether the legislature can in fact—as opposed to merely in principle—use section 33 to ensure that administrative decisions survive notwithstanding sections 2 and 7 to 15 of the Charter.

The difference arises because of the difference between Charter rights and Charter values. The legislature can restrict the enforcement of Charter rights by using section 33 to ensure that legislation operates notwithstanding the relevant Charter provisions. By contrast, the legislature cannot restrict the enforcement of Charter values, not even if it tried to do so by using section 33. That is because section 33 only concerns the relevant Charter provisions, which only directly protect Charter rights and only indirectly protect Charter values. While Charter values are indirectly protected by the relevant Charter provisions, Charter values are more broadly grounded throughout the Charter, including in provisions that are not subject to section 33. For example, section 3 protects the right to vote, section 6 protects mobility rights, and sections 16 to 23 protect language rights. The Charter values of human dignity, equality, liberty, autonomy, and democracy[135] all seem at least partly grounded in these provisions, which are not subject to section 33.

So, even in the hypothetical case where Parliament and all the provincial legislatures were to use section 33 in all legislation so that the legislation operates notwithstanding sections 2 and 7 to 15 of the Charter, Charter values (such as human dignity) grounded in its remaining provisions would still exist even if only in a diminished form.

To elaborate on this hypothetical case, consider two views on the status of Charter values. Within the first view, Charter values might have diminished effect during the period when the legislation operates notwithstanding Charter provisions in which the Charter values are partly grounded. The idea would be that during that time, the use of section 33 in all legislation weakens Charter values that are partly grounded in the relevant sections of the Charter or the enforcement of such values. But insofar as those Charter values are also partly grounded in Charter provisions other than these sections (which are not subject to section 33), those Charter values still retain some force.

On the second view, Charter values, even those partly grounded in the relevant sections of the Charter, might remain in full force during that time. The idea would be that all Charter provisions, including sections 2 and 7 to 15, continue to have some legal force as part of the constitution. On this second view, the legislature cannot use section 33 to weaken Charter values or their enforcement, even if it could use section 33 to weaken Charter rights or their enforcement.

I prefer this second view, because I find it plausible that Charter values derive from the mere existence of the Charter, irrespective of its enforcement. As Justice McIntyre wrote for the Court in a foundational case on Charter values, RWDSU v. Dolphin Delivery Ltd., Charter values are “the fundamental values enshrined in the Constitution.”[136] This characterization of Charter values suggests that Charter values derive from the mere existence of the Charter, irrespective of its enforcement. This suggestion, in my view, aligns with Justice Cory’s statement in another foundational case on Charter values, Hill v. Church of Scientology of Toronto, that: “The Charter represents a restatement of the fundamental values which guide and shape our democratic society and our legal system.”[137]

The unanimous Court’s more recent comments in CSFTNO also support this second view. There, Justice Côté reiterated that “discretionary decisions must ‘always’ take Charter values into consideration.”[138] She clarified that Charter values can “engage the Doré framework, even in the absence of any infringement of a right.”[139] We can infer that even where Charter rights have no application, Charter values continue to have application—even full application.

I conclude that the legislature cannot use section 33 to prevent a reviewing court from engaging in review based on Charter values. However, can the legislature nonetheless—that is, without using section 33—prevent a reviewing court from engaging in review based on Charter values?

An intriguing possibility is that the legislature can use an unwritten analogue of section 33 to restrict the enforcement of Charter values. However, it is questionable whether such an unwritten analogue could be available. In City of Toronto, the majority at the Supreme Court implicitly assumed that there is no unwritten analogue of section 33, because the constitutional bargain is specified in the text.[140] That implicit assumption seems plausible. The dissent in that case avoided responding to the majority’s concerns.[141]

Another intriguing possibility is that the legislature can use a written provision to specifically instruct courts not to review administrative decisions based on Charter values. However, I doubt that a court would give full effect to the legislature’s attempt to limit judicial review in this way. As Dunsmuir v. New Brunswick put it:

The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect.[142]

In my view, the legislature’s use of a written provision to specifically instruct courts not to review administrative decisions based on Charter values would be a privative clause which a reviewing court would, or at least ought, not give full effect to. Such a clause would amount to a constitutionally impermissible attempt to limit judicial review. After all, Charter values are—as Justice McIntyre wrote in Dolphin Delivery—“enshrined in the Constitution.” This enshrinement, it seems to me (and to repeat myself), means that Charter values derive from the very existence of the Charter as part of the Constitution. A clause that seeks to limit judicial review based on Charter values would attempt to limit the judicial review of administrative decisions for compliance with the “constitutional capacities of the government,” contrary to Dunsmuir.[143]

To put my point another way, the legislature cannot prevent the judicial review of administrative decisions based on Charter values because the legislature cannot (itself) amend the Charter. So long as the Charter exists, the Charter values that it supports constrain administrative decisions made under legislation.

One might think that since, as CSFTNO suggested,[144] administrative decisions are only constrained by relevant values, perhaps the legislature can attempt to use a privative clause to render irrelevant Charter values that would otherwise be relevant. In my view, the legislature cannot succeed in such an attempt. CSFTNO explained that Charter values can be relevant “because of the nature of the governing statutory scheme, because the parties raised the value before the administrative decision maker, or because of the link between the value and the matter under consideration.”[145] Thus, for example, a Charter value can be relevant simply because the parties raised it, irrespective of what the legislature says.

D. The Charter Rights and Charter Values Approaches

The upshot of the difference between Charter rights and Charter values, I suggest, is that the legislature’s actual ability to use section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter provisions depends on the approach to assessing administrative decisions for Charter compliance. Let me explain.

On the Charter rights approach, the legislature can use section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter provisions. But what does it mean to ensure that an administrative decision survives? It is analogous to ensuring that legislation operates. Since ensuring that legislation operates means at least that a court cannot strike it down, ensuring that administrative decisions survive means at least that a court cannot quash it. Quashing administrative decisions is the analogue of striking down legislation. This much seems clear, and that is the only certain effect of the legislature’s ability to use section 33 to ensure that administrative decisions survive on the Charter rights approach. But this effect leaves room for debate about whether ensuring that administrative decisions survive has further effects.

Specifically, I suggest that the maximalist and minimalist views within the existing debate over the effect of using section 33 in the context of legislation correspond to analogous views on the effect of using section 33 in the context of administrative decisions. Recall from Part II that, in the context of legislation, using section 33 prevents a court from striking down legislation, although there is disagreement over the extent to which such use precludes judicial review on the grounds of unconstitutionality based on the relevant Charter provisions. On the maximalist view, there can be no such judicial review. However, on the minimalist view, there can be a limited version of such judicial review; a reviewing court cannot strike down the legislation but can still make declarations about whether the legislation infringes or violates the relevant Charter rights, whether the legislation is consistent with the relevant Charter provisions, or whether the legislation is valid.

In the context of administrative decisions, I suggest there is a range of views on the effect of using section 33 corresponding to the maximalist and minimalist views in the context of legislation. On any view, using section 33 prevents a court from quashing administrative decisions, but the corresponding views differ over the extent to which such use precludes judicial review on the grounds of unconstitutionality based on the relevant Charter provisions. Within the view corresponding to the maximalist view, there can be no such judicial review. Within the view corresponding to the minimalist view, however, there can be a limited version of such judicial review; a reviewing court cannot quash the decision, but can still make declarations about whether the administrative decision limits or interferes with the relevant Charter rights, whether the decision involves a reasonable and proportional balance with respect to the relevant Charter rights, or whether the decision is valid, intra vires or reasonable.

That said, my point here is only that, on the Charter rights approach, there is a range of views on the effect of using section 33 in the context of administrative decisions that corresponds to the range of views on the effect of using section 33 in the context of legislation. I am not suggesting that the proponent of one view (say, the maximalist view) in the context of legislation should or must be a proponent of the corresponding view in the context of legislation. Nothing as a matter of principle would seem to require that. It could be that a maximalist in the context of legislation might be a minimalist in the context of administrative decisions. Nonetheless, it might be natural for a maximalist in the context of legislation to also be a maximalist in the context of administrative decisions.

So much for the Charter rights approach. What about on the Charter values approach? On the Charter values approach, it seems to me that the legislature cannot, in fact, use section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter provisions. That is because, as I have suggested, Charter values are grounded in the very existence of the Charter, including in Charter provisions that are not subject to section 33. Again, to quote Justice McIntyre in Dolphin Delivery, Charter values are “enshrined” in the Constitution. Thus, the legislature cannot use section 33 to restrict the enforcement of Charter values, at least not in the total way that it can restrict the enforcement of Charter rights. Even in the hypothetical case where Parliament and all the provincial legislatures were to use section 33 in all legislation so that the legislation operates notwithstanding sections 2 and 7 to 15 of the Charter, Charter values (such as human dignity) grounded in the remaining provisions of the Charter would still exist.

Finally, as I have explained, the Charter rights approach and the Charter values approach are mutually compatible and can be employed together, in which case the legislature can use section 33 to restrict the enforcement of Charter rights but not, or at least not as completely, restrict the enforcement of Charter values.

Conclusion

I conclude that since the legislature can delegate its authority by authorizing an administrative decision-maker to make decisions that the legislature can itself engage in, the legislature can in principle use section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter provisions. But whether the legislature can in fact use section 33 in this way depends on the approach to assessing administrative decisions for Charter compliance.

On the Charter rights approach, which requires the administrative decision to reasonably and proportionately balance statutory objectives and Charter rights, the legislature can in fact use section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter provisions. At least, a court cannot quash an immunized administrative decision on the ground of unconstitutional interference with the relevant Charter provisions. In addition, it might also be that a court cannot review the decision based on such a ground at all.

By contrast, on the Charter values approach, which requires the administrative decision to reasonably and proportionately balance statutory objectives and Charter values, the legislature cannot in fact use section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter provisions. Charter values transcend the relevant Charter provisions, while any use of section 33 can only affect the relevant Charter provisions.

To return to Bill 28, the Ontario legislature’s purported use of section 33 to ensure that administrative decisions made under the legislation would survive may have been lawful, at least in part. The legislature could in fact have used section 33 to extend the legislation’s immunity from being struck down to administrative decisions made under the legislation, so that the decisions were immune from being quashed. At least, this is so if the framework for determining whether administrative decisions comply with the Charter is based on Charter rights. Yet the extent to which the legislature could have immunized the administrative decisions from judicial review on the grounds of unconstitutional interference with the relevant Charter provisions depends on the scope of the immunity for administrative decisions, which I have outlined the options for but not settled. However, if the framework for determining whether administrative decisions comply with the Charter is based on Charter values, then the legislature could not in fact have used section 33 to extend the legislation’s immunity to administrative decisions made under the legislation.

In closing, I wish to add a broader remark to emphasize the context for my project here. In the interest of advancing our understanding of whether the legislature can use section 33 to ensure that administrative decisions survive notwithstanding the relevant Charter provisions, I have argued for a particular view on the issue. But my underlying aim is to draw attention to and encourage discussion of this important but neglected subject. Even if one disagrees with my particular view, or with the associated conceptions of Charter rights and Charter values, I hope to spark further exploration of the administrative law of section 33.