Doré v. Barreau du Québec 2012 SCC 12
Barristers and Solicitors - Duty to public - General - Duty to conduct oneself with objectivity, moderation and dignity (incl. civility)
The Disciplinary Council of the Barreau du Québec reprimanded a lawyer for the content of a letter he wrote to a judge after a court proceeding. That decision was upheld by the Tribunal des professions. The lawyer applied for judicial review, inter alia, challenging the constitutionality of the decision, claiming that it violated his freedom of expression (Canadian Charter of Rights and Freedoms, s. 2(b)).
The Quebec Superior Court, in a decision with neutral citation 2008 QCCS 2450, dismissed the application. The lawyer appealed.
The Quebec Court of Appeal, in a decision with neutral citation 2010 QCCA 24, dismissed the appeal. The court acknowledged that the Disciplinary Council’s decision was a breach of s. 2(b), but applying a full s. 1 Oakes analysis upheld the decision. The lawyer appealed again. At issue was the appropriate framework to be applied in reviewing administrative decisions for compliance with Charter protections (i.e., whether the s. 1 Oakes framework developed for reviewing laws for compliance with the Constitution or an approach which integrated Charter values into the classic administrative law approach to judicial review was to be used).
The Supreme Court of Canada held that in determining whether administrative decision-makers exercised their statutory discretion in accordance with Charter protections, the administrative law approach was appropriate. The standard of review was reasonableness. In this case, the discipline committee’s decision to reprimand the lawyer reflected a proportionate balancing of its public mandate to ensure that lawyers behaved with “objectivity, moderation and dignity” with the lawyer’s expressive rights. It was, as a result, a reasonable one. The court dismissed the appeal.