Supreme Court

Constitutional Law

Applicant’s letter outside public’s reasonable expectations of lawyer’s professionalism

Applicant sanctioned by professional order for having written letter to judge criticizing judge’s conduct and personality. Disciplinary council of Barreau du Quebec found that Code of ethics of advocates (Que.), may constitute infringement of fundamental right of freedom of expression but limitation preventing advocate from calling judge “loathsome person, arrogant, fundamentally unjust” or from describing his behaviour as “pedantic, aggressive, and petty” entirely reasonable and necessary in Canadian legal system. Superior Court found that Professions Tribunal’s conclusion reasonable and correct. Applicant served suspension but obtained leave to appeal on whether Superior Court Judge correct in deciding that freedom of expression did not protect applicant. Quebec Court of Appeal dismissed applicant’s appeal. Further appeal to Supreme Court of Canada dismissed. Administrative decision-makers must act consistently with values underlying grant of discretion, including values from Canadian Charter of Rights and Freedoms. When assessing compliance of administrative decision with Charter values, appropriate framework is to apply administrative law/judicial review analysis, rather than strict s. 1 approach as set in R. v. Oakes (1986), 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200 (S.C.C.). Reasonableness remains applicable review standard for disciplinary panels. Administrative decision-maker applies Charter values in exercise of statutory discretion by balancing Charter values with statutory objectives. On judicial review, decision reasonable if reflects proportionate balancing of Charter protections at play. In this case, Charter value is expression and, specifically, how it should be applied in context of lawyer’s professional duties. Code of ethics stated “the conduct of an advocate must bear the stamp of objectivity, moderation and dignity”. In dealing with appropriate boundaries of civility, severity of conduct must be interpreted in light of expressive rights guaranteed by Charter and, in particular, public benefit in ensuring right of lawyers to express themselves about justice system and judges. Council found applicant’s letter outside public’s reasonable expectations of lawyer’s professionalism. Council recognized lawyer has right to respond to criticism or remarks by judge but personal attacks overstepped norms of moderation and dignity. Conclusion reasonable balance of applicant’s expressive rights with statutory objectives.

Dore v. Barreau du Quebec

(Mar. 22, 2012, S.C.C., McLachlin C.J.C., Binnie, LeBel, Fish, Abella, Rothstein and Cromwell JJ., File No. 33594) Decision at 326 D.L.R. (4th) 749, 196 A.C.W.S. (3d) 75 was affirmed. 211 A.C.W.S. (3d) 852 (47 pp.).

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