Evidence of meeting #59 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was international.
A recording is available from Parliament.
Conservative
The Chair Conservative Mike Wallace
Okay, thank you.
I will go to the question now on amendment LIB-5.
(Amendment negatived)
(Clauses 5 agreed to)
(Clauses 6 to 8 inclusive agreed to)
(On clause 9)
There is a question on clause 9.
Liberal
Sean Casey Liberal Charlottetown, PE
I'm not proposing an amendment. It's a question for clarity. It again relates to the English and French versions in clause 9.
In proposed subsection 607(6), in line 4 of the English version, there are three subsections listed: “subsections 7(2) to (3.1)”, and then the words “or (3.7)”.
The French version, at lines 8 and 9, lists those three subsections, but it reads
“des paragraphes 7(2) à (3.1) et (3.7)”.
In the English version we have the word “or” used, and in the French version we have the word “et” used.
Is that an oversight, or is my pedestrian handle on French the reason I can't understand why those two words are not a direct translation?
Conservative
Carole Morency Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
Thank you for the question.
We're not aware that it is a problem. As you will know, the French and English versions are co-drafted together. They have to convey the same idea, but they may not convey it through exactly the same words or expressions.
I read the two as being consistent. We hadn't seen it as a problem. I think there is consistency, though I note that they do read differently if you literally translate word by word. However, I think the essence is consistent between the two official languages.
Conservative
The Chair Conservative Mike Wallace
Thank you for that answer.
We'll move on.
(Clause 9 agreed to)
(Clause 10 agreed to)
Shall the short title carry?
Conservative
Conservative
The Chair Conservative Mike Wallace
Thank you very much.
Just so you know, I will not be in the House tomorrow morning, so I will take this to the House on February 25 upon my return.
That deals with our study of Bill S-9.
Thank you very much, and thank you to the legislative clerks for joining me and for telling me that I would be okay today.
We'll move on to the next item on the agenda. We may have about half an hour, but probably not.
Madame Boivin, your motion had been deferred from the meeting on Monday until today, so I give you the floor to move your motion back onto the table, if you wish.
NDP
Françoise Boivin NDP Gatineau, QC
Excellent. Thank you, Mr. Chair. And here I was thinking I would have only about 15 minutes to discuss this motion, when in fact I will have a half an hour on Monday and another half an hour today. I appreciate that.
I think I have basically covered the whole issue by now. Within the last hour, I received from the Parliamentary Secretary to the Minister of Justice a document on section 4.1 of the Department of Justice Act. I don't know whether this document has been distributed to all my committee colleagues. That would probably be useful to those who are interested in those operations. I have not had the time to study the document in order to figure out whether it truly meets the objective of my motion. I am not convinced that this is a real response.
I may instead wish to go over the point raised by my colleague Mr. Rathgeber.
We distributed some information to explain a bit of what was behind this. Again, I would just stress the point that it is not to have a huge inquiry. My colleague talked about the sub judice concept, which is not the case, because it's not about touching the case that is in front of the tribunal. Maybe not all of us, but a lot of us parliamentarians have been made aware because of that case of the obligation from
section 4.1 of the Department of Justice Act. That obligation is also set out in the Statutory Instruments Act and various other documents, and it is part of our role as legislators.
My intention here is simply to suggest that we hold a meeting. I understand that the agenda of the Standing Committee on Justice and Human Rights is very full, and it will become more so with the study of bills that will be introduced. That's why I have not set a deadline.
However, it would be a good idea to study the matter in subcommittee or standing committee, so that we can have the opportunity to talk to Department of Justice lawyers in order to understand—beyond the terminology of section 4.1—how that applies to real life. They could provide us with some examples—not necessarily discuss specific cases, but provide us with some idea. It's one thing to say that the minister must ensure that all the provisions of the bill are consistent with the Charter, but it's quite another to explain how the process works and what kind of verification takes place. There are experts on the topic.
I don't know whether it has to do with the fact that I'm interested in this issue, but I find that there are so many experts. Among other documents, I gave my colleague an article by Concordia University's Professor Kelly titled
“The Canadian Charter of Rights and the Minister of Justice: Weak-form Review within a Constitutional Charter of Rights”.
Such statements worry me. I tell myself that I will at least be able to look people in the eye, tell them that, beyond politics, tests to ensure compliance with constitutional legislation and the Canadian Charter of Rights and Freedoms are carried out diligently, and explain to them what's involved in the process. So we can move on to the next topic.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
Thank you, Mr. Chair.
First, I'd like to say that of course this is taken very seriously by our government. I'm going to read into the record the document I have provided to Madame Boivin and Mr. Cotler, and then I will table it in both English and French.
Conservative
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
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.
Conservative
The Chair Conservative Mike Wallace
Thank you, Ms. Findlay.
We have it in French. We don't have it in English. We will get it before the meeting is over, and it will be distributed to everyone. It is being copied right now.
Conservative
The Chair Conservative Mike Wallace
We are getting it, so everybody will have a copy.
Have you any further comment?
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
Just to finish up on that, I understand that it is a serious concern and I understand that it should be, but these processes have been in place for the many years since the act became law in 1985.
They have been followed by ministers of justice and ministry officials since that time. As I have pointed out, in what I've read, the whole point of review internally is to work throughout the legislative process so that when a piece of legislation is introduced, it should not trigger a 4.1 report, because it has already been fully vetted and fully considered.
When that analysis is done, it is a qualitative analysis; it is not based on any percentages or quotas. It's a qualitative analysis that is done, taking into account all our constitutional law, which would include section 1 considerations.
Thank you.
Conservative
The Chair Conservative Mike Wallace
Thank you very much.
Our next speaker to this motion is Mr. Rathgeber.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you, Mr. Chair.
To my colleagues, first of all, thank you so much for your indulgence on Monday in setting this matter over for 48 hours to allow the committee to carefully consider it. I do consider it to be very serious, and I think we all should, with respect to legislation being charter compliant.
I also want to thank my colleague and my colleague's office for providing me with some wonderful bedtime reading, which she had referred to. It was 39 pages, and I got through it—