Justice Committee on Feb. 23rd, 2016

[Alyson MacLean]

No.

[Murray Rankin, NDP, Victoria, BC]

Okay.

Let me then go to page 15 where you talk about impaired driving cases having decreased. I wanted to know what impaired driving meant. I certainly know it includes alcohol. In my part of the world an increasing number of people are driving under the influence of marijuana, and we've certainly read a lot about that in Colorado and the like as well.

Are there charges for people who are impaired under the influence of marijuana, for example? Would that be included in impaired, or are we to limit this to alcohol impairment?

[Donald Piragoff]

The statistics don't make a distinction between the substances that caused the impairment. Stats Canada records the fact that there was a conviction for impaired driving. That's all Stats Canada has. The circumstances of the offence, whether there was a drug involved alone or together with alcohol is not.... Stats Canada doesn't have that information.

So you would include drugs as well. Whatever constitutes a conviction would be captured most likely, but there's no breakdown by Stats Canada as to what is drugs and what is not. There may be other studies that have looked at the prevalence of drug-impaired driving. I think there are some regional or city ones, but they're not national stats.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I'd like to thank both of the witnesses for having come before us today. We very much appreciate your presentations and your answers to the questions. I'd ask you to please send to the clerk some of the documents you said you would deliver to the committee.

We're going to suspend for a couple of minutes for the next panel.

[The Chair, Liberal, Anthony Housefather]

We are reconvening and resuming.

I'd like to welcome our second panel, which is our double Laurie panel. It's probably the only time this year that only Lauries will be witnesses.

From the Department of Justice, we have Laurie Wright who is the assistant deputy minister of the public law sector, and Laurie Sargent who is the deputy director general and general counsel from the human rights law sector of the public law and legislative services sector. You have one of the longest titles I've ever heard, Ms. Sargent.

[Laurie Sargent, Deputy Director General and General Counsel, Human Rights Law Sector, Public Law and Legislative Services Sector, Department of Justice]

It's a military rank.

[Some hon. members]

Oh, oh!

[The Chair, Liberal, Anthony Housefather]

I'd invite you each to present for 10 minutes, and then we've agreed that we'll do one round of questions instead of two, so that we finish on time.

Please go ahead.

[Laurie Wright, Assistant Deputy Minister, Public Law Sector, Department of Justice]

Thank you very much.

It's a pleasure for me to be here today to talk about the Department of Justice's approach to supporting our minister, the Minister of Justice, in performing the examination of government bills and regulations as mandated by section 3 of the Canadian Bill of Rights, section 4.1 of the Department of Justice Act, and also by subsection 3(2) of the Statutory Instruments Act.

These examination provisions and the process surrounding them play an important role in promoting the rule of law. First, they require the minister to examine every bill introduced or presented to the House by a minister of the Crown to ascertain whether any of the provisions of a draft bill are inconsistent with the purposes and provisions of the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms.

In the case of draft regulations, a comparable duty is imposed on the Clerk of the Queen’s Privy Council of Canada, in consultation with the deputy minister of Justice.

While the process through which government bills are examined is not exactly the same as that employed for draft regulations, the object of the examination is the same, namely, to ascertain whether any of the provisions are inconsistent with the purposes and provisions of guaranteed rights.

Second, when either the Minister of Justice or the deputy minister of justice forms the opinion described by the examination provisions, they must report it. Either the minister may report it to the House of Commons after first reading, or the Clerk of the Privy Council may report it to the regulation-making authority after consultation with the deputy minister.

For the purposes of today's presentation I will focus on the review of government bills rather than regulations. As you may be aware, there have been no reports of inconsistency with respect to government bills since the enactment of the charter.

In the Department of Justice’s view, this reflects the work we do with the sponsoring departments to ensure that legislation is consistent with constitutional guarantees. It also reflects a careful balancing of the roles and responsibilities of the executive, Parliament and the judiciary in upholding the Constitution and the rule of law.

I would like to take a moment to describe the department's work in more detail.

Officials in my department, the Department of Justice, play an important role in the development and preparation of government legislation, a process that involves many stakeholders.

Department of Justice lawyers provide legal advice to policy officials all across government on how to achieve their policy objectives while respecting the constitution and all other relevant legislation. Most often, any legal risks identified are reduced or mitigated before they reach Parliament. Justice lawyers are typically involved throughout the policy development process, from initial policy development to legislative drafting, by providing advice on any legal concerns which may arise including those related to the charter.

To support this important function, the department long ago created a centre of expertise on human rights. Officials in the human rights law section, for which I am responsible, ensure that the government benefits from expert legal advice on complex and novel human rights questions, both domestically and with respect to our international human rights obligations.

The section also seeks to promote coherence and consistency of legal advice across government on the Charter of Rights and the Canadian Bill of Rights.

In the initial phases of the policy development process, government officials work closely with Justice Canada's legal counsel to address human rights and charter concerns. All through the process, the policy can be adjusted as required to minimize any risk of inconsistency with guaranteed rights.

These adjustments inform the recommendations that are made to cabinet and take into account all the identified legal risks including any with respect to compliance with charter rights. For example, where a sponsoring department's options raise significant legal risk, policy officials and justice counsel would report their concerns to senior management for discussion. This would include a discussion of risks up to and including those that would trigger the minister's obligation to report an inconsistency.

If the discussions don't lead to changes, the human rights law section will participate alongside other justice counsel in briefing senior departmental officials on the legal advice provided so that discussions at the senior level and the cabinet table are properly informed. Finally, at the cabinet table, the minister herself can again raise any significant legal concerns and advise her colleagues in respect of the constitutionality of the proposal being proposed. Once policy direction is received from cabinet, the legislative drafting process begins.

Legislative Services counsel are specialized lawyers responsible for drafting legislation. They are also responsible for examining legislation and regulations for consistency with guaranteed rights. In fulfilling this responsibility, legislative counsel work closely with other government lawyers, including lawyers from the human rights law section. Once again, they will seek to mitigate any charter or other legal risks that may be identified at the drafting stage.

The chief legislative counsel provides final examination from the branch of all government bills for consistency with guaranteed rights in consultation with the human rights law section as required. As you can see, before legislation is introduced in Parliament, it has gone through a very rigorous review by the Department of Justice.

At this point I'd like to take a moment to speak more specifically about the scope of the duty of the Minister of Justice, who has to report to Parliament any provisions that are inconsistent with the charter or the Canadian Bill of Rights once the proposed legislation is drafted and ready to be introduced.

The government’s position on the scope of the minister’s duty has been described to Parliament many times over the years, including by several previous ministers of Justice. It has also recently been the subject of a legal challenge brought by former Department of Justice counsel Edgar Schmidt. As you may be aware, we are still awaiting the decision of the Federal Court in this matter.

If at the conclusion of the legislative drafting phase the Minister of Justice is of the view that there is an inconsistency between a provision of a government bill and a guaranteed right, it is at this stage that she must report the inconsistency to the House. In practice this would be tabled after first reading. In plain language, section 4.1 imposes on the minister the duty to ascertain that a proposed government bill is inconsistent with government rights. Given that responsibility, the reporting standard must reflect the wording and intent of the provision. In the case of government bills, the minister has the duty to ascertain the inconsistency and may do so, informed by the legal advice of the Department of Justice, and of others if she so desires.

Therefore, it is ultimately the minister who must come to her own assessment based on the advice she receives, as well as her own appreciation of the legal issues at stake.

As you may be aware, the government's long-standing position is that the minister's obligation to report only arises when there is no credible argument to support the constitutional validity of the legislation. A credible argument is an argument that is reasonable, bona fide, and capable of being raised before and accepted by the courts. This standard requires substantial but not absolute certainty of inconsistency, and it's not based on fixed percentages.

As you might suspect, this kind of assessment can sometimes be a challenging exercise. It's made by applying a law to a set of facts at a particular time. However, facts relating to a law's impact can change as society evolves, including facts that speak to either the purpose of the measure, the rational connection between the measure and its purpose, and the proportionality between the nature and scope of rights infringement and the importance to society of the objective that's being pursued.

The jurisprudence about guaranteed rights is also constantly evolving, sometimes very significantly and unpredictably. There have been many examples of this over time, including, to give just one example with which Parliament is now grappling, significant shifts recently in what had appeared to be settled law under the charter in relation to assisted suicide.

I wanted to take this opportunity to highlight the broader principles that have informed the department's approach in supporting the minister in exercising her powers and duties. Under our constitutional system of government all branches of government—Parliament, the executive, and the courts—have responsibility for ensuring that protected fundamental rights and freedoms are respected.

The system of examination put in place by the department to support the minister and the deputy minister is intended to ensure respect for the role that each branch performs in this regard. The examination provisions mark the outer boundary of when Parliament must be informed that a bill, which it's about to debate, is clearly inconsistent with a guaranteed right. However, within that boundary there remains considerable scope for debate in Parliament as to whether laws may be found consistent with guaranteed rights, and the Constitution, more generally.

The credible argument standard takes into account the multiple roles that the minister performs in Canada's constitutional democracy. It's sensitive to the duty to uphold the rule of law and the Constitution, while ensuring that the minister, through the exercise of statutory duty, does not foreclose legislative debate over policy except in the clearest cases of inconsistency with the charter.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for that very clear and coherent presentation.

It's been agreed, as I understand, by all sides that we're going to do just one round of questioning so that we finish on time.

We're going to start with the Liberals and Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much for your excellent presentation. I very much appreciate that. I have a question.

I know that there is currently a—

Is there a problem?

[The Chair, Liberal, Anthony Housefather]

We're going to continue. I will fix this the next time. I realize that in this round it's actually the Conservatives that are first.

Actually, if you don't mind, we'll go to Mr. Cooper. I apologize. I didn't realize that it was different for the second group from the first group. Sorry to put you on the spot there.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

You had mentioned something about assisted dying at one point, but I didn't hear you finish your thought. I'm on the special joint committee, so it just perked my attention. But I didn't hear what you were specifically referring to.

[Laurie Wright]

I don't believe I made any remarks with respect to the special joint committee.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

No, but you did mention the topic of assisted dying and I didn't hear what the context was.

[Laurie Wright]

Sorry, it was simply to say that we were sometimes looking at cases where the law had seemed settled and we received an unexpected decision from the court. That would have been the Carter decision, which has now led to the special joint committee that is looking at that issue.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thanks for that clarification.

You provided a fairly comprehensive overview of the process and analysis that takes place with respect to legislation to ensure charter compliance. Are there any changes to that process that are envisioned at this time?

[Laurie Wright]

I think, at the departmental level, we're quite satisfied that we have an entirely robust and well-functioning system in terms of how the advice is given and how it is reflected in the policy development process. As I mentioned in my remarks, at the end of the day, it's the minister's responsibility to make the final decision with respect to whether a bill meets the standard in section 4.1 or not.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

That standard, again, is credible, bona fide, and...? What was the other criterion?

[Laurie Wright]

The way we look at it is that it has to be a bona fide and reasonable argument that's capable of being accepted by a court.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I will designate the balance of my time to Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Thank you.

Thank you, witnesses, for coming here this morning, Ms. Wright and Mrs. Sargent.

I'm wondering if you can give us a little bit of a report on the frequency of incidents that have actually happened in the past.

[Laurie Wright]

Well, I can say in terms of the role of the department that we're certainly involved every time there is a memorandum to cabinet that's being prepared with respect to a proposal for new legislation. The review for all legal risks, including those related to the charter, would take place every time a legislative proposal is under development, either during the policy development phase, at the phase of the memorandum to cabinet, or during the drafting phase. We're certainly involved consistently every time legislation is being prepared.

[Ted Falk, Conservative, Provencher, MB]

Okay, thank you, and I appreciate that answer.

If I understood you correctly, though, the minister has an obligation to report to the House any time government legislation contravenes the charter or the Constitution. Can you report on how often that has happened?

[Laurie Wright]

Certainly. Because of the high threshold for the report, there has never been a Minister of Justice who has ever made a report under this section. When bills are tabled, there is a certification that they have been examined for compliance with the charter, but a report under section 4.1 has never been made.