Justice Committee on Feb. 23rd, 2016

[Ted Falk, Conservative, Provencher, MB]

I haven't been here that long, but that's the way it would seem to me. I can't imagine a Minister of Justice producing that kind of report in the House of Commons against their own government.

[Laurie Wright]

We feel it's a mark of success with respect to adjustments that are made to policy proposals as they're developed that we have never come to that impasse where a minister would be at odds with cabinet colleagues with respect to the constitutionality of legislation.

[Ted Falk, Conservative, Provencher, MB]

Okay, and as the Justice department you've never had cause in the past to think that should have happened?

[Laurie Wright]

It's the minister's decision at the end of the day with respect to advice that the department provides. I think we have a good track record of managing to work with clients in order to address those risks before it would get to that stage.

[Ted Falk, Conservative, Provencher, MB]

Okay, and this is something that only applies to government legislation and does not apply to private member's business.

[Laurie Wright]

That's correct. The obligation in the Department of Justice Act does not apply to private member's bills. I understand there is a House committee process that looks at private member's bills before they're put forward for eligibility for the list. It does look at constitutional issues, but that's not an obligation on the minister.

[Ted Falk, Conservative, Provencher, MB]

Thank you very much, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Falk.

Now, we will go to Mr. Fraser.

I apologize to both sides. I didn't realize that we reversed the other panel.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Chair.

Thank you very much for coming in and for your presentation.

I know that Bill C-452 seeks to amend the Criminal Code to make it provide for consecutive sentences for offences related to exploitation and trafficking in persons.

Could you share your views on this bill, which may well be deemed unconstitutional, and on the possible links with section 4.1 of the Department of Justice Act?

[Laurie Wright]

That is because this provision is a private member's bill. It's not covered by the scope of section 4.1 of the Department of Justice Act, and the minister does not have a responsibility to report with respect to private member's bills.

On the question of the constitutionality of the bill itself, unfortunately I'm not in a position to be able to provide legal advice to the committee on that, but I would recommend that you can turn to your law clerk of the House.

[Colin Fraser, Liberal, West Nova, NS]

Okay, thank you.

With regard to legal opinion sought by the Minister of Justice under 4.1 of the Department of Justice Act, that legal opinion is given from within the department. Is that correct?

[Laurie Wright]

We do provide considerable advice. We're not the only source of advice to which our minister or other ministers are entitled. There is a process for seeking advice from private firms if a minister wants to do so, but the bulk of the advice that our minister receives would come from within the Department of Justice.

[Colin Fraser, Liberal, West Nova, NS]

I have one final question. With regard to that legal advice, is that subject to privilege?

[Laurie Wright]

Yes. The crown is considered to be the same as a private person when she is consulting her counsel, so there is solicitor-client privilege that respects the confidentiality of that advice.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much.

I don't know if my colleagues have questions.

[The Chair, Liberal, Anthony Housefather]

Mr. Hussen.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Thank you, Mr. Chair.

Thank you for coming in and giving us a good presentation.

I have two questions with respect to the courts declaring laws to be contrary to the charter in recent years. Due to the frequency of those decisions in recent years, in which the courts have declared laws to be contrary to the charter, what are we to conclude about the efficacy of the section 4.1 reviews?

My second question is this. How can those reviews and that efficacy be improved so we have fewer laws being ruled contrary to the charter by the courts?

[Laurie Wright]

I think that there are several things to keep in mind. Many of the provisions that have been struck down in recent years by the courts are relatively old provisions that would have predated the charter and the obligation on the minister to report. That's certainly one factor to keep in mind.

I think it's also important to note that there has been a number of important successes with respect to defending Parliament's laws before the courts in recent years. There are some examples that come to mind such as the security certificates regime and some terrorism offences in the Criminal Code.

The other thing to keep in mind is that the law is in constant change. Even when you look at the progress that one case makes, going from its trial level all the way up to the Supreme Court, you may find that reasonable people, i.e., different judges who are sitting on the cases will take different approaches to the same issue. You may have at a trial level, for example, a court that says that something is not constitutional, but when it's appealed to a court of appeal, the court of appeal will disagree and uphold the law. On an appeal panel, you will have more than one judge, so you may have some judges who disagree even within the same panel about the constitutionality of the legislation.

This puts us in a situation, as lawyers, of acknowledging that what we do is an art, not a science. It's hard to come up in every case with a level of certainty that something is not going to be struck down by the courts.

[The Chair, Liberal, Anthony Housefather]

Are there any further questions from that side? If there aren't, can I just ask one small question, as we have one minute left?

Just for clarification, you said that there's no percentage basis on the 4.1(1) decision as to whether or not a report is required. In the event that you found that the preponderance of the evidence would conclude that there is a charter violation, would you deem that a requirement to report, or could you still say that, even though there's a 60% or 70% chance that the charter is violated here, there's still a bona fide chance that there will not be a violation, and as such, the legislature should be allowed to go ahead and do what it wants without advice?

[Laurie Wright]

I think that when you get to the reporting standard, it's looking at it a little bit from the other way around. It's not to say that there might not be impacts on rights and freedoms and that the government doesn't have a case that it wants to make for justifying that impact. The question is, have you crossed over the threshold where a lawyer would not be able to make the credible argument in court in order to be able to justify the legislation?

[The Chair, Liberal, Anthony Housefather]

At that point, then, as long as you can make a credible argument, you could say, “I think there's a 10% chance that it will be upheld, but I can make a credible argument that it's still....” Okay, I understand.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you. I'd like to continue in that vein, if I could.

I can understand, as Mr. Falk pointed out, how unlikely it would be that in the 31 years of this requirement's existence a minister would stand up and actually table something to say that it is inconsistent with the charter.

What the Schmidt case seems to be showing us—and I take it that we still have to wait for the court's decision—is that the standard is just much too low. My opinion is that the standard is ridiculously low. Apparently it's whether it is “manifestly unconstitutional and could not be defended by credible arguments before a court.”

Whether there's a good chance that a provision would be found unconstitutional, more likely than not, as the chair said, that's the standard that I would argue needs to be there, rather than some 10% or 20%. I know you don't quantify it, but that's what Mr. Schmidt asserted and that's what's before the courts in that decision.

It seems to me that the standard is very low, and if one looks at the amount of time and money that we have spent on the federal government's losing cases about the charter in the last few years, I would assert to you that the proof is in the pudding.

[Laurie Wright]

There are certainly different approaches that can be taken. I think that the idea behind the standard here is that it's only in the clearest of cases that you would want, essentially, the executive to prevent Parliament from being able to have a debate on whether it wishes to go forward with a certain piece of legislation representing a certain policy solution to a problem.

The report that a Minister of Justice might make is not the only source of information that's available to parliamentarians when they're considering legislation as to the questions of constitutionality. Certainly, there is a law clerk for the House; there's a law clerk for the Senate. In addition to that, at committee hearings there's often a wide variety of witnesses who appear to offer their views with respect to the legal issues, including constitutional issues on bills.

I believe that the purpose of the standard that's been adopted is to recognize the important roles that each of the branches plays and not to foreclose democratic discussion.

[Murray Rankin, NDP, Victoria, BC]

Have you had a chance to compare the standard that exists in section 4.1 of the Department of Justice Act with similar provisions across the country to see whether they're applied in a more rigorous fashion? Anecdotally, that appears to be what's happening.

[Laurie Wright]

On section 4.1 in terms of Canadian standards, there are no comparable provisions across the country with respect to the provincial legislatures. There are some international comparators. I can perhaps ask Laurie Sargent to—