It reads as follows:
Section 4.1 of the Department of Justice Act requires the Minister of Justice to examine government bills presented to the House of Commons and ascertain whether they are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms (“Charter”) and report any such inconsistency to the House of Commons.
Proposed government legislation is reviewed for Charter and other legal risks throughout the policy and legislative development processes. Relevant risks are brought to the attention of senior officials and Ministers throughout the policy and legislative development processes and every effort is made to mitigate them.
Once a government bill is introduced in the House of Commons, the Chief Legislative Counsel confirms (i.e., certifies) that the requisite review of the legislation for consistency has taken place. If a Minister of Justice were to conclude that a given government bill was, at the time of introduction, inconsistent with the Charter, a report under section 4.1 would be issued. The absence of a section 4.1 report means that the Minister had concluded that the government bill was not inconsistent with the Charter.
Section 4.1 sets out the specific obligation of the Minister: the Minister must ascertain whether there is inconsistency with the Charter. The long-standing approach of the Department of Justice is that the Minister ascertains that there is an inconsistency between a proposed legislative measure and the Charter only where there is no credible argument to support the proposed measure, that is, an argument that is reasonable, bona fide and capable of being raised before and accepted by the courts. The Minister exercises this responsibility based on the advice of Departmental officials.
Under our constitutional system, all branches of government— Parliament, the executive and the courts—have responsibility for ensuring that Charter rights are respected, while permitting governments to act in the public interest. The system of Charter review put in place under section 4.1 ensures that each branch performs its appropriate role: 1) within the executive, proposed legislative initiatives are reviewed, taking into consideration any Charter risks that have been identified through the advisory process, and there is a certification that the necessary review has taken place upon introduction in the House of Commons; 2) it is for Parliament to debate the proposed law and to determine whether or not it will become law; and 3) finally, if a law is challenged, it is for the courts to review the laws passed by Parliament to determine whether they are constitutionally valid.
The last 30 years of experience with the Charter shows that our system works well, and has produced a robust system of Charter rights review.
That is the document that with unanimous consent of the committee I would like to table in both English and French.