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.