Federal Court of Appeal Set a Disturbingly Low Bar for Reporting Charter Problems

On March 20, 2018, more than a year after hearing arguments in the matter of Schmidt v. Attorney General of Canada, the Federal Court of Appeal released its decision. The ruling affirms that the Minister of Justice only has to report to Parliament regarding inconsistencies between a proposed bill and the Charter of Rights and Freedoms when there is no credible argument in favour of the bill passing the Charter test. This low standard could explain why, in the 35 years since the advent of the Charter, not a single report has been made.

CCLA intervened in Schmidt, both at the Federal Court and in the Federal Court of 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 rule of constitutionalism dictates that the government is duty-bound to draft legislation that respects the Charter. According to the legislation that is at issue in this case, the Minister is duty-bound to report when proposed legislation does not do so.

The Attorney General has argued that the Minister of Justice’s reporting duty serves a deterrent function, and is only exercised as a last resort: if the Minister has no confidence in the bill she is required to table, she must report as much to Parliament, and then resign. On this theory, the real vetting takes place prior to the Minister’s tabling the bill.

The Federal Court of Appeal’s decision is based on a determination that the current interpretation of the provisions is not only reasonable, but correct. The Court also goes to some lengths explaining the complexity of determining whether legislation is Charter-compliant, suggesting that since it will generally not be possible to say with certainty that legislation complies with the Charter, the standard should be understood as an obligation to report when there is no argument in support of compliance.

CCLA is disappointed with the Court’s decision and continues to believe in the need for reform that will allow parliamentarians to be able to truly and meaningfully assess the constitutional implications of the laws they are passing. While the government has proposed an amendment to the Department of Justice Act that would require the Minister to issue a Charter statement in relation to all government bills tabled in Parliament, we remain concerned that the amendment does not go far enough. It would allow for a relatively superficial statement on Charter compliance rather than putting forward in Parliament the kind of detailed analysis that is required to defend the constitutionality of legislation in our courts. For more information about CCLA’s proposals to improve our current system of legislative review, see www.ccla.org/charterfirst.

Federal Court of Appeal factum (jointly with BCCLA)

Federal Court of Appeal decision

CCLA in the News:

Lawyers Daily: Former federal justice lawyer Schmidt accuses department of ‘doublespeak’ after losing appeal