THE CANADIAN GOVERNMENT AND PARLIAMENT ARE REQUIRED TO UPHOLD THE CHARTER OF RIGHTS AND FREEDOMS WHEN DRAFTING, AMENDING, AND VOTING ON, NEW LAWS…
SO, HOW IS IT THAT SO MANY OF THEM SEEM TO VIOLATE CHARTER RIGHTS?
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INADEQUATE CHARTER REVIEW HELPS ADVANCE BAD LAWS LIKE BILL C-51
In recent years, CCLA has become increasingly concerned about critical accountability and transparency gaps in our law-making process. These gaps allow contentious legislation — think: Bill C-51, the Fair Elections Act, the omnibus mandatory minimums crime bill, and the bill limiting refugee access to Canada — to be passed without open, adequate, and meaningful consideration of their constitutional vulnerabilities (i.e. if, how, and to what extent a proposed law may violate the Charter).
AVOIDABLE COURT BATTLES & RIGHTS AT RISK
That job has been left to our already overburdened courts, and to affected individuals and public interest organizations, such as CCLA, who, in recent years, have at times been compelled to launch Charter challenges as the only viable recourse. This is unfortunate given that these particular challenges — which come at a significant cost not only to the applicants, but also the public — could likely have been avoided had Parliament done its duty. And of even greater concern, as these lengthy court battles play out — many of them take years — the laws in question remain in effect, leaving the rights and freedoms of Canadians at risk.
PROACTIVE MEASURES NEEDED
Notwithstanding the promise from the Trudeau government of a ‘new dynamic’ on Charter matters, CCLA believes that proactive accountability and transparency measures are needed to help compel our government and parliamentarians — both present and future — to honour their fundamental duty to uphold the Charter throughout the law-making process.
JOIN THE #CHARTERFIRST CAMPAIGN AND TOGETHER LET’S PUT RIGHTS FIRST IN CANADIAN LAWMAKING!
Report and Recommendations
On September 20, 2016, CCLA released a comprehensive report, Charter First: A Blueprint for Prioritizing Rights in Canadian Lawmaking. Informed by consultations with experts in political science and constitutional law, the report expands on the important issues raised by the Charter First campaign and 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. Here is a brief summary of those recommendations:
- Parliament should amend the ineffective section 4.1 of the Department of Justice Act such that the Minister of Justice is required to issue a detailed statement of Charter compatibility when a government bill is introduced in Parliament. The statement should lay out the government’s principled position regarding how, on a balance of probabilities, the bill complies with the purposes and provisions of the Charter. This should include an acknowledgement of which rights, if any, are engaged by the bill; the government’s justification for any potential infringements under section 1 of the Charter; the ‘tests’, factors, or reasonable alternatives considered to reach the conclusion; reference to jurisprudence and relevant judicial precedents; and an acknowledgement if the bill contradicts existing norms or precedents.
- Parliament should create a position of Charter Rights Officer, with a staff and mandate to provide independent assessments of the Charter compliance of bills, and to serve in an advisory role to parliamentarians and parliamentary committees on Charter issues.
- The Senate and House of Commons should review and revise their respective amendment admissibility rules to allow committees to debate and vote on amendments that address Charter concerns regardless of whether they go beyond the ‘scope and principle’ of a bill.
- For all government bills, the Charter Rights Officer should issue an independent assessment of Charter compliance, ideally prior to Second Reading in the House or Senate (depending on where a given bill is introduced). If amendments are made at any subsequent point, the Officer should issue addendums, ideally before final votes on the bill are taken. (If the bill was introduced in the Senate and amendments are made by Senators, then the Minister of Justice should issue an addendum to the government statement of compatibility at First Reading in the House.)
- For any private members’ bill or Senate public bill that passes Second Reading in the House or Senate respectively, the Charter Rights Officer should issue an independent assessment of Charter compliance. If amendments are made at any subsequent point, the Officer should issue addendums, ideally before final votes on the bill are taken.
HOW HAVE LAWS BEEN PASSED WITHOUT “OPEN, ADEQUATE, AND MEANINGFUL CONSIDERATION” OF THE CHARTER?
All Canadian laws must comply with the Charter of Rights and Freedoms, as it is part of our constitution. Put simply, any given law must ‘pass the Charter test’. However, this currently does not prevent Parliament from passing laws that are likely unconstitutional because typically Charter tests are applied by our courts long after the fact. This means an individual whose rights have been violated — say, at the hands of CSIS agents utilizing their sweeping new disruption powers under Bill C-51 — must challenge the law in court and win in order for the law to be struck down and their rights restored.
Individuals in Canada must continue to be able to defend their Charter rights in the courts, which are pivotal institutions in a democratic society. Likewise, CCLA will continue to press forward with our existing Charter challenges (to Bill C-51, the overuse of segregation in federal prisons, and aspects of the Personal Information Protection and Electronic Documents Act), and will not hesitate to bring additional challenges if necessary in the future. Our question is: why not take proactive steps to help prevent it from ever getting to that? Why can’t we get it right from the start? Our overburdened courts cannot solely be responsible for assessing whether our laws are Charter compliant; our elected representatives bear responsibility as well.
ARE THERE ANY CHARTER COMPLIANCE RELATED PROCEDURES ALREADY IN PLACE?
Typically, the Department of Justice provides legal opinions to the Minister regarding the constitutionality or legal vulnerabilities of government proposed legislation. Under current practice, however, the government has typically refused to waive solicitor-client privilege over these opinions. Consequently, Parliamentarians — and, in turn, Canadians — have routinely been left without vital information about the laws they are asked to enact.
The Minister of Justice is also, in principle and according to the law, required to report Charter inconsistencies to Parliament. However, the Department of Justice has suggested that the Minister need only report when there is no credible argument in favour of a bill passing the Charter test. This standard is simply too low and, in effect, leaves the difficult work of reconciling policy goals and protected rights to the courts when the executive and legislative branches also have an important role to play. In practice, this loose interpretation has meant that not a single report relaying concerns about Charter compliance has ever been made to Parliament. Meanwhile, contentious laws — including the Anti-Terrorism Act, 2015 (Bill C-51); the Fair Elections Act; the Safe Streets and Communities Act; and the Protecting Canada’s Immigration System Act — were passed and swiftly challenged in court. This is why new proactive measures are necessary to better safeguard the fundamental rights enshrined in the Charter.
In April 2016, during initial parliamentary debate, the Minister of Justice released a “Charter impacts” analysis of Bill C-14, the government’s physician assisted dying legislation. While in principle we welcomed the initiative, the statement did not provide the sort of comprehensive and meaningful analysis that we believe parliamentarians and Canadians need to consider before bills become law. Further, the Minister took this step voluntarily; we believe governments should be obligated to take similar action for all bills proposed.
WHAT ACTION HAS CCLA ALREADY TAKEN?
- On May 10, 2017, CCLA appeared before the Special Senate Committee on Senate Modernization to specifically speak about the Charter First Campaign. Read our submission here.
- We wrote a letter outlining our concerns to the Minister of Justice who has since replied, expressing a willingness to continue the conversation
- We intervened in Schmidt v. Attorney General of Canada, a highly relevant case, and have been permitted to intervene in the appeal
- We wrote a letter to the Chairs of the Justice and Human Rights Committee
- We raised the issue during our April 2016 testimony to the House of Commons Justice and Human Rights Committee
- We published the Charter First report, sent it to all parliamentarians, and have engaged in advocacy with key government representatives to press for change.
HOW LONG WILL THIS CAMPAIGN RUN?
All campaigns for change take time, but we are committed to seeing this through during this government’s term in office. Throughout the process we will be sure to keep you updated and will let government officials and parliamentarians know that you want them to put the Charter first!
The following organizations support the goals of the Charter First campaign to increase transparency and accountability surrounding Charter issues in proposed legislation, and to raise the standard of Charter compliance of laws passed by Parliament.
If you work with an organization that would like to become a Charter First supporter, please email us!