CCLA argues for higher standard in lawmaking

February 9, 2017

After having heard from counsel in Schmidt v. Attorney General of Canada on Feb. 8, three Federal Court of Appeal judges – justices David Stratas, Donald Rennie, and David Near – will now evaluate the standard the Minister of Justice has been using when declaring that a bill tabled in Parliament complies with the Charter of Rights and Freedoms.

Is it the minister’s job to call attention only to the most flagrantly rights-violating legislation? Or does the Canadian public deserve a higher standard? Should all branches of government, including the executive, hold themselves to a strict constitutional standard, or can the burden of highlighting constitutional vulnerabilities remain on the shoulders of ordinary Canadians, public interest organizations, and an overburdened court system? The judges of the Federal Court of Appeal judges are tasked with answering those questions.

According to several statutory provisions, when the Minister of Justice tables a bill that is inconsistent with the Charter, she must report those inconsistencies to Parliament. So, if the minister tables a bill without an accompanying report, she has vouched for the constitutionality of the legislation.

But the standard currently employed by the Department of Justice to come to its determination of Charter compliance is so low, argues the Canadian Civil Liberties Association, it can’t adequately function as a vouchsafe. Currently, the minister only needs to inform Parliament of a Charter inconsistency if DOJ lawyers cannot think of a single reasonable argument in the legislation’s defence. This low standard could explain why in the 32 years since the advent of the Charter, there has not been a single report filed.

CCLA intervened in Schmidt, both at the Federal Court and in the appeal, because we believe the Minister of Justice’s reporting duty should function to inform Parliament, and regular Canadians, of the degree to which proposed bills comply with the Charter. The government is duty-bound to draft legislation that respects the Charter – that’s the rule of constitutionalism, a fundamental principle of law – and according to the statutory provisions at issue in this case, the minister is duty-bound to report when proposed legislation does not do so.

Right now, the government can introduce laws to Parliament that have almost no chance of succeeding a constitutional challenge, while denying there is an inconsistency with the guaranteed rights.

The Attorney General argues the Minister of Justice’s reporting duty serves a last-resort deterrent function, equivalent to the nuclear option: if the minister has no confidence in the bill she is required to table, she must report as much to Parliament, and then resign. The real vetting takes place prior to the Minister’s tabling the bill.

Whatever the court’s decision, CCLA will continue to advocate for the government to reform its standard practice. Parliamentarians need to be able to meaningfully assess the constitutional implications of the laws they are passing, and Parliament should be given the tools to hold the government accountable for the laws it introduces.

This is why CCLA launched the #CharterFirst campaign. CCLA’s Charter First report presents detailed policy recommendations that we believe would increase transparency and accountability surrounding Charter issues, and raise the standard of Charter compliance of laws passed by Parliament. Hundreds of Canadians have already pledged their support to the campaign, and you can join us as well!

CCLA was represented at the Federal Court of Appeal by Gillian Hnatiw of Lerners.

> Read CCLA’s factum to the Federal Court of Appeal