Top Five 2012: Doré v Barreau du Québec

Each year at OJEN’s Toronto Summer Law Institute, a judge from the Court of Appeal for Ontario identifies five cases that are of significance in the educational setting. This summary, based on these comments and observations, is appropriate for discussion and debate in the classroom setting.

Doré v Barreau du Québec, 2012 SCC 12

In this case, the Supreme Court of Canada (SCC) explored the tension between civility in the legal profession and lawyers’ freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. The SCC considered whether to use the Oakes test or a conventional administrative law approach when a lawyer’s freedom of expression is violated by sanctions by a professional governing body. The conventional approach gives more leeway to the governing body to determine whether such a violation is reasonable. While Charter values should be incorporated into judicial review of administrative decisions, lawyers must be aware that there are limits on their freedom of expression, in regard to expression that would undermine the image of the judiciary. The full decision is available here.